To evict a family member in Delaware, you have to treat them as a tenant even if they never signed a lease or paid rent. That means written notice first (60 days for a typical month-to-month situation), then a Complaint for Summary Possession filed in Justice of the Peace Court, mandatory mediation through the state’s eviction diversion program, a hearing before a Justice of the Peace, and a 10-day wait after judgment before a constable can physically remove them. Skipping any step, or trying to force them out yourself, exposes you to serious damages.
Don’t Change the Locks
The single most expensive mistake a Delaware homeowner can make is trying to handle this without the court. Changing the locks while your relative is out, shutting off utilities, or setting their belongings on the curb is called “unlawful ouster” under Delaware law. Your relative can sue you for three times their actual damages, or three times the daily rental value for every day they were locked out, whichever is greater, plus court costs.1Delaware Code Online. Delaware Code Title 25 Chapter 53 – Landlord Obligations and Tenant Remedies
Delaware’s Landlord-Tenant Code applies to any residential arrangement, written or oral.2Delaware Code Online. Delaware Code Title 25 Chapter 51 Subchapter I – Property A relative who has been receiving mail at your address, storing belongings there, and staying for weeks or months is an occupant with tenant protections, and when nothing is written down the law treats the arrangement as a month-to-month tenancy by default.3Justia. Delaware Code Title 25 5106 – Rental Agreement Term and Termination of Rental Agreement The lawful path runs through Justice of the Peace Court, and only through Justice of the Peace Court.
Serve the Right Written Notice First
You cannot file anything until you have delivered the correct written notice and waited out the required period. Which notice you need depends on the situation.
60-Day Notice for a Month-to-Month Occupant
For a family member with no fixed end date to their stay who does not pay rent, you must give at least 60 days’ written notice terminating the arrangement. The clock does not start the day you hand over the notice. It starts on the first day of the month after delivery.3Justia. Delaware Code Title 25 5106 – Rental Agreement Term and Termination of Rental Agreement Deliver notice on March 15 and the 60 days begin April 1, ending at the close of May. Mid-month delivery quietly adds time, so plan around that.
5-Day Notice for Unpaid Rent
If your relative agreed to pay rent and has fallen behind, the notice period drops to 5 days. The notice must state the specific dollar amount owed. If they do not pay within 5 days, you can file.4Delaware Code Online. Delaware Code Title 25 Chapter 55 – Tenant Obligations and Landlord Remedies – Section 5502
7-Day Notice for a Rules Violation or Damage
If your relative has caused property damage, behaved disruptively, or violated a household rule you both agreed to, you must give at least 7 days’ written notice describing the specific problem and allowing time to fix it. If the problem continues past 7 days, you can terminate and file. When the conduct causes or threatens irreparable harm to a person or property, the 7-day cure period does not apply and you can terminate immediately.5Delaware Code Online. Delaware Code Title 25 Chapter 55 – Tenant Obligations and Landlord Remedies – Section 5513
What Every Notice Must Contain
The notice needs the full legal name of every adult you want out, the complete street address, the specific reason for termination, and the date. Errors on any of these give your relative grounds to challenge the notice in court and can reset your entire timeline. The Justice of the Peace Court publishes fillable forms on the Delaware Courts website.6Delaware Courts. Delaware Courts Forms
File a Complaint for Summary Possession
Once the notice period expires and your relative has not left, file a Complaint for Summary Possession in the Justice of the Peace Court in the county where the property is located.7Delaware Code Online. Delaware Code Title 25 Chapter 57 – Summary Possession You can file through the state’s e-filing system or in person at the courthouse. The filing fee is $45.8Delaware Courts. Justice of the Peace Court Civil Fees
Attach a copy of the notice you served, along with proof of how and when it was delivered. After the court accepts your filing, it schedules a hearing date, and a constable serves the summons on your relative. The case cannot move until service is complete.
Complete Mandatory Mediation
Delaware requires landlords to participate in the residential eviction diversion program after filing. It is not optional. The court will not hold your hearing until you have gone through mediation with your relative or they have failed to participate. You must also file a Landlord’s Affidavit of Participation at least 5 days before the scheduled hearing, or the court may dismiss your complaint or postpone the hearing.9Delaware Courts. Delaware Courts – Landlord/Tenant – Justice of the Peace Court
Your relative is paired with a HUD-certified housing counselor before the mediation session. If both sides reach an agreement in mediation, the court can formalize it and the case ends there. If your relative fails to register and engage within 15 days of being served, mediation lapses and the case moves to a hearing. Landlords are only exempt in irreparable-harm situations or certain immediate-termination scenarios.10Justia. Delaware Code Title 25 5702A – Residential Eviction Diversion Program
Family cases are often where mediation earns its keep. A structured session with a neutral third party can cut through months of household friction that kitchen-table arguments only made worse. Even when it does not produce a settlement, going through the process satisfies the court and moves your case forward.
The Hearing
At the hearing, a Justice of the Peace decides whether you have established grounds for possession. You need to prove that you own or control the property, that your relative received proper notice, and that the notice period has expired without them leaving.7Delaware Code Online. Delaware Code Title 25 Chapter 57 – Summary Possession
Bring the deed or title, a copy of the notice with proof of delivery, any texts or emails between you and your relative, records of any rent agreement or payments, and photographs if damage is part of your claim. Judges see these disputes constantly and respond better to organized documentation than to emotional testimony. If the judge rules in your favor, you receive a judgment for possession. Your relative is not removed on the spot.
Defenses Your Relative May Raise
Because a family member knows the household, they can mount defenses a stranger could not. Three come up most often.
Retaliation. If your relative has complained to a code enforcement agency, reported you to a government authority, or exercised any legal right connected to their housing within the past 90 days, the court presumes the eviction is retaliatory. You can overcome the presumption by showing an independent reason, such as recovering the home for your own personal use, undertaking substantial renovations, or permanently removing the unit from the rental market for at least six months.11Delaware Code Online. Delaware Code Title 25 Chapter 55 – Section 5516 Retaliatory Acts Prohibited
Domestic violence protections. Delaware bars evicting a tenant who has sought help from a court, police, or a domestic violence program for domestic abuse, a sexual offense, or stalking. If your relative has obtained a protective order or sought DV services and you file within 90 days of a related incident, the court presumes your action violates the statute. These protections apply even though you are the property owner.12Delaware General Assembly. Delaware Code Title 25 5316 – Protection for Victims of Domestic Abuse, Sexual Offenses and Stalking If you are the person experiencing domestic violence and your relative is the aggressor, talk to an attorney or Delaware’s domestic violence hotline before filing; the interaction of protective orders and eviction law gets complicated quickly.
Defective notice. The most common successful defense in any eviction is that the notice was wrong: wrong name, wrong address, wrong time period, or an inadequate description of the problem. A notice giving 55 days instead of 60, or failing to name an adult occupant, can produce a dismissal and force you to start over.
Writ of Possession and Physical Removal
Winning the hearing does not mean your relative leaves that day. The court will not issue a Writ of Possession until 10 days after judgment.13Delaware Courts. How To File and Defend a Summary Possession Action in the Justice of the Peace Court Part of that window exists to allow an appeal. Either side has 5 days to appeal to a three-judge panel of Justices of the Peace, and if your relative appeals and posts the required bond, the eviction pauses until the panel rules.14Delaware Courts. Delaware Courts – Justice of the Peace Court Appeals
Once you have the writ, a court constable handles the physical removal. The constable gives your relative a final deadline. If they are still there when the constable returns, the constable oversees the lockout and secures the property. You cannot do this yourself, even with the judgment in hand.
Property Left Behind
If your relative leaves belongings when the writ is executed, you must store the items for at least 7 days at their expense. After 7 days, if they have not reclaimed the property and reimbursed you for reasonable removal and storage costs, the items are considered abandoned and you can dispose of them.15Justia. Delaware Code Title 25 5715 – Execution of Judgment Writ of Possession Throwing things out on day one, however tempting, opens you to the same treble-damages liability as an unlawful lockout. Seven days of storage is cheap by comparison.
How Long the Whole Process Takes
For the common case, a month-to-month relative who does not pay rent, expect roughly three to four months from delivering notice to regaining possession:
- 60-day notice period, which effectively runs 60 to 90 days depending on when you deliver the notice within the month.
- A few days to a couple of weeks for the court to process the complaint and for a constable to serve the summons.
- Up to 15 days for your relative to engage with the eviction diversion program, and mediation must be completed at least 48 hours before trial.
- Hearing scheduled after mediation ends or the tenant fails to participate.
- 10-day wait after judgment before the writ issues.
- A few more days for the constable to execute the writ.
Contested hearings, appeals, or scheduling delays push it longer. Knowing the timeline up front lets you plan around each waiting period rather than run into them one by one.