Delaware Landlord Tenant Law - Click here to return to US Landlord
TABLE OF CONTENTS
PART III. RESIDENTIAL LANDLORD-TENANT CODE
CHAPTER 51. GENERAL PROVISIONS
SUBCHAPTER I. RIGHTS, OBLIGATION AND PROCEDURES, GENERALLY
5101. Applicability of Code
5102. Exclusions from applicability
5103. Jurisdiction
5104. Obligations of good faith
5105. Disclosure
5106. Rental agreement; term and termination of rental agreement
5107. Renewal of rental agreements; modifications
5108. Rental agreement; automatic extension
5109. Rental agreement; promises are mutual and dependent
5110. Rental agreement; effect of unsigned agreement
5111. Attorney's fees prohibited in rental agreement
5112. Time computation
5113. Service of notices, pleadings and process
5114. Contractual notice between the parties
5115. Forthwith Summons
5116. Fair Housing provisions
5117. Violation of rental agreement or code; remedies
5118. Summary of Residential Landlord-Tenant Code
5120. Landlord liens; distress for rent
5121. Confession of judgment
Subchapter II. Definitions
5141. Definitions
(a) action
(b) building and housing codes
(c) certificate of mailing
(d) commercial rental unit
(e) disabled or handicapped
(f) equivalent substitute housing
(g) extended absence
(h) forthwith summons
(i) good-faith dispute
(j) "holdover" and "holdover tenant"
(k) injunction
(l) landlord
(m) legal holiday
(n) local government unit
(o) month-to-month
(p) normal wear and tear
(q) owner
(r) person
(s) pet deposit
(t) premises
(u) rental agreement
(v) "rental unit," "dwelling unit," and "dwelling
place"
(w) security deposit
(x) senior citizen
(y) support animal
(z) tenant
(aa) utility services
CHAPTER 53. LANDLORD OBLIGATION AND TENANT REMEDIES
5301. Landlord obligations; rental agreement
5302. Tenant remedy; termination at beginning of term
5303. Landlord obligation to supply possession of rental unit
5304. Tenant's remedies for failure to supply possession
5305. Landlord obligation relating to the rental unit
5306. Tenant's remedies relating to the rental unit; termination
5307. Tenant's remedies relating to the rental unit; repair and deduction
from rent
5308. Essential services; landlord obligations and tenant remedies
5309. Fire and casualty damage; landlord obligation and tenant remedies
5310. Assurance money prohibited
5311. Fees
5312. Metering; charges for utility services
5313. Unlawful ouster or exclusion of tenant
5314. Tenant's right to early termination
5315 Taxes paid by tenant; set off against rent
CHAPTER 55. TENANT OBLIGATIONS AND LANDLORD REMEDIES
5501. Tenant obligations; rent
5502. Landlord remedies for failure to pay rent
5503. Tenant obligations relating to rental unit; waste
5504. Defense to an action for waste
5505. Tenant's obligations relating to defective condition
5506. Tenant obligations; notice of extended absence
5507. Landlord remedies for absence or abandonment
5508. Landlord remedies; restrictions on sub-leasing and assignments
5509. Tenant obligation to permit reasonable access
5510. Landlord remedy for unreasonable refusal to permit access
5511. Rules and regulations; tenant obligations
5512. Rules and regulations relating to certain buildings; landlord
remedies
5513. Breach of rules and covenants; landlord remedies
5514. Security deposit
5515. Landlord remedies relating to hold-over tenants
5516. Retaliatory acts prohibited
5517 Preferences of rent in cases of execution
CHAPTER 57. SUMMARY POSSESSION
5701. Jurisdiction and venue
5702. Grounds for summary proceeding
5703. Who is entitled to a summary proceeding
5704. Commencement of action; notice of complaint
5705. Service and filing of notice
5706. Manner of service
5707. Contents of complaint; in general
5708. Contents of complaint; specific exceptions
5709. The Answer
5710. Trial
5711. Judgment
5712. Default Judgment
5713. Jury Trials
5714. Compelling attendance of jurors
5715. Execution of judgment; writ of possession
5716. Halt or stay of proceedings; action by tenant
5717. Proceedings stopped during appeal
5718. Proceedings in forma pauperis
CHAPTER 59. TENANT'S RECEIVERSHIP
5901. Petition for receivership; grounds, notice and jurisdiction
5902. Necessary parties defendant
5903. Defenses
5904. Stay of judgment by defendant
5905. Receivership procedures
5906. Powers and duties of the receiver
5907. Discharge of the receiver
PART IV. COMMERCIAL LEASES
CHAPTER 61. COMMERCIAL LEASES
6101. Metering and charges for utility services
6102. Definitions
6103. Preference of rent in cases of execution
6104. Confession of judgment
6105. Taxes paid by tenant; setoff against rent; recovery from owner
CHAPTER 63. DISTRESS FOR RENT
6301. Action at law; jurisdiction; case in which distress lies
6302. Form of claim; contents; costs
6303. Order of distress; service of claim and order; levy; inventory;
return; duration of levy
6304. Levied goods in custody of Court; removal and sale; plaintiff's
interest
6305. Protective measures upon a showing that a tenant may abscond
6306. Procedure in the event of a forcible entry
6307. Release of distrained property upon filing of bond
6308. Answer to claim; hearing; final order of sale
6309. Public sale of property distrained; notice of sale
6310. Liability of officer
PART III
RESIDENTIAL LANDLORD-TENANT CODE
CHAPTER 51. GENERAL PROVISIONS
Subchapter I. Rights, Obligations and Procedures, Generally.
5101. Applicability of Code.
5102. Exclusions from application of this Code.
5103. Jurisdiction.
5104. Obligations of good faith.
5105. Disclosure.
5106. Rental agreement; term and termination of rental agreement.
5107. Renewals of rental agreements with modifications.
5108. Rental agreement; automatic extension of agreements where parties fail to
terminate or renew subject
to modifications.
5109. Rental agreement; promises mutual and dependent.
5110. Rental agreement; effect of unsigned rental agreement.
5111. Attorney's fees prohibited.
5112. Time computation.
5113. Service of notices or pleadings and process.
5114. Notice; contractual notice between the parties.
5115. Application for a forthwith summons.
5116. Fair housing provisions.
5117. Remedies for violation of the rental agreement or the Code.
5118. Summary of residential landlord-tenant code.
5119. [Reserved.]
5120. Landlord liens; distress for rent.
5121. Confession of judgment.
Subchapter II. Definitions.
5141. Definitions.
5101. Applicability of Code.
(a) This Code shall regulate and determine all legal rights, remedies and
obligations of all parties and
beneficiaries of any rental agreement of
a rental unit within this State, wherever executed. Any rental agreement,
whether written or oral, shall be
unenforceable insofar as the agreement
or any provision thereof conflicts with any provision of this Code, and is not
expressly authorized herein.
The unenforceability shall not affect
other provisions of the agreement which can be given effect without the void
provision.
(b) Any rental agreement for a commercial rental unit is excluded from this
Code. All legal rights, remedies
and obligations under any
agreement for the rental of any commercial rental unit shall be governed by
general contract principles; and
only Chapter 57 of Title 25 and Part
IV of Title 25 shall have any application to commercial rental agreements.
5102. Exclusions from application of this Code.
The following arrangements are not intended to be governed by this Code, unless
created solely to avoid
such application:
(1) Residence at an institution, whether public or private, where such residence
is merely incidental to
detention or to the provision of medical,
geriatric, educational, counseling, religious or similar services, including
(but not limited to) prisons,
student housing provided by a college or
school, old-age homes, nursing homes, homes for unwed mothers, monasteries,
nunneries and hospitals.
(2) Residence by a member of a fraternal organization in a structure operated
for the benefit of the
organization.
(3) Residence in a hotel, motel, cubicle hotel or other similar lodgings.
(4) Nonrenewable rental agreements of 120 days or less for any calendar year for
a dwelling located within
the boundaries of Broadkill
Hundred, Lewes-Rehoboth Hundred, Indian River Hundred and Baltimore Hundred.
(5) A rental agreement for ground upon which improvements were constructed or
installed by the tenant
and used as a dwelling, where the
tenant retains ownership or title thereto, or obtains title to existing
improvement on the property.
5103. Jurisdiction.
Any person, whether or not a citizen or resident of this State, who owns, holds
an ownership or beneficial
interest in, uses, manages or
possesses real estate situated in this State submits himself, herself or itself
or such person's personal
representative to the jurisdiction of the
courts of this State as to any action or proceeding for the enforcement of an
obligation arising under this
Code.
5104. Obligations of good faith.
Every duty under this Code, and every act which must be performed as a condition
precedent to the
exercise of a right or remedy under this
Code, imposes an obligation of good faith in its performance or enforcement.
5105. Disclosure.
(a) On each written rental agreement, the landlord shall prominently disclose:
(1) The names and usual business addresses of all persons who are owners of the
rental unit or the property
of which the rental unit is a part, or
the names and business addresses of their appointed resident agents; and/or
(2) The names and usual business addresses of any person who would be deemed a
landlord of the unit
pursuant to 5141(12) of this title.
(b) Where there is a written rental agreement, the landlord shall provide a copy
of such written rental
agreement to the tenant, free of charge. In
the case of an oral agreement, the landlord shall, on demand, furnish the tenant
with a written statement
containing the information required by
subsection (a) of this section.
(c) Any owner or resident agent not dealing with the tenant as a landlord shall
be responsible for
compliance with this section by the landlord
and may not take advantage of any failure to serve process upon such owner or
resident agent in any
proceeding arising under this Code
where such failure is due to the owner or resident agent's failure to comply
with this section.
5106. Rental agreement; term and termination of rental agreement.
(a) No rental agreement, unless in writing, shall be effective for a longer term
than 1 year.
(b) Where no term is expressly provided, a rental agreement for premises shall
be deemed and construed
to be for a month-to-month term.
(c) The landlord may terminate any rental agreement, other than month-to-month
agreements, by giving
a minimum of 60 days' written notice to the tenant prior to the expiration of
the term of the rental
agreement. The notice shall indicate that the agreement shall terminate upon its
expiration date. A tenant
may terminate a rental agreement by giving a minimum of 60 days' written notice
prior to the expiration of
the term of the rental agreement that the agreement shall terminate upon its
expiration date.
(d) Where the term of the rental agreement is month-to-month, the landlord or
tenant may terminate the
rental agreement by giving the other party a minimum of 60 days' written notice,
which 60-day period shall
begin on the 1st day of the month following the day of actual notice.
(e) With regard to a tenant occupying a federally-subsidized housing unit, in
the event of any conflict
between the terms of this Code and the terms of any federal law, regulations or
guidelines, the terms of the
federal law, regulations or guidelines shall control.
5107. Renewals of rental agreements with modifications.
(a) If the landlord intends to renew the rental agreement subject to amended or
modified provisions, the
landlord shall give the tenant a minimum
of 60 days' written notice prior to the expiration of the rental agreement that
the agreement shall be renewed
subject to amended or modified
provisions, including, but not limited to, amended provisions relating to the
length of term or the amount of
security deposit or rent. Such notice
shall specify the modified or amended provisions, the amount of any rent or
security deposit and the date on
which any modifications or
amendments shall take effect.
(b) After receipt of such notice from the landlord, unless the tenant notifies
the landlord of the tenant's
intention to terminate the existing rental
agreement a minimum of 45 days prior to the last day of the term, the provisions
of the amended or
modified rental agreement shall be deemed
to have been accepted and agreed to by the tenant, and the terms of the lease,
as amended, shall take full
force and effect.
(c) If the tenant rejects the modified terms or provisions set forth in a notice
of renewal given under this
section, then the rejected notice of
renewal shall be considered an effective termination notice.
(d) The terms of subsections (a) through (c) of this section shall not be
applicable where the tenant's rent
and security deposit are a function of
the tenant's income in accordance with any form of regulations or guidelines of
the United States
Department of Housing and Urban
Development (HUD); in the event that they are a function of income, the
regulations and guidelines
established by HUD with regard to the
determination and future adjustments of a tenant's rent and security deposit
shall govern. With regard to a
tenant's occupying HUD-subsidized
units, in the event of any conflict between the terms of this Code and the terms
of any HUD regulation or
guideline, the terms of a HUD
regulation or guideline shall control.
5108. Rental agreement; automatic extension of agreements where parties
fail to terminate or renew
subject to modifications.
(a) Where a rental agreement, other than for farm unit, is for 1 or more years,
and 60 days or upward
before the end of the term either the
landlord does not give notice in writing to the tenant of landlord's intention
to terminate the rental
agreement and the tenant does not give 45
days' notice to the landlord of tenant's intention to terminate the rental
agreement, the term shall be
month-to-month, and all other terms of the
rental agreement shall continue in full force and effect.
(b) The provisions of 5107(a) through (c) of this title shall control if a
notice of renewal with
modifications has been sent.
(c) With regard to a tenant occupying a federally-subsidized housing unit, in
the event of any conflict
between the terms of this Code and the
terms of any federal law, regulations or guidelines, the terms of the federal
law, regulations or guidelines
shall control.
5109. Rental agreement; promises mutual and dependent.
(a) Material promises, agreements, covenants or undertakings of any kind to be
performed by either party
to a rental agreement shall be
interpreted as mutual and dependent conditions to the performance of material
promises, agreements,
covenants and undertakings by the
other party.
(b) A party undertaking to remedy a breach by the other party in accordance with
this Code shall be
deemed to have complied with the terms of
this Code if their noncompliance with the exact instructions of this Code is
nonmaterial and nonprejudicial
to the other party.
5110. Rental agreement; effect of unsigned rental agreement.
(a) If the landlord does not sign a written rental agreement which has been
signed and tendered to the
landlord by the tenant, acceptance of rent
without reservation by the landlord shall give to the rental agreement the same
effect as if it had been
signed by the landlord.
(b) If the tenant does not sign a written rental agreement which has been signed
and tendered to the tenant
by the landlord, acceptance of
possession and payment of rent by the tenant, without reservation, shall give to
the rental agreement the
same effect as if it had been signed by
the tenant.
(c) Where a rental agreement which has been given effect by the operation of
this section provides by its
terms for a term longer than 1 year, it
shall operate to create only a 1-year term.
5111. Attorney's fees prohibited.
No provision in a rental agreement providing for the recovery of attorney's fees
by either party in any suit,
action or proceeding arising from the
tenancy shall be enforceable.
5112. Time computation.
In computing any period of time prescribed or allowed by order of the Court or
by any applicable statute,
the day of the act, event or default from
which the designated period of time begins to run shall not be included unless
specifically included by
statute, order or rule. The last day of the
period so computed shall be included, unless it is a Saturday, Sunday or a legal
holiday, in which event the
period runs until the end of the next
day which is not a Saturday, Sunday or a legal holiday. When the period of time
prescribed or allowed is
less than 7 days, intermediate
Saturdays, Sundays and legal holidays shall be excluded from the computation.
5113. Service of notices or pleadings and process.
(a) Any notice or service of process required by this Code shall be served
either personally upon the tenant
or landlord or upon the tenant by
leaving a copy thereof at the person's rental unit or usual place of abode with
an adult person residing
therein; and upon the landlord by leaving
a copy thereof at the landlord's address as set forth in the lease or as
otherwise provided by landlord with
an adult person residing therein, or
with an agent or other person in the employ of the landlord whose responsibility
it is to accept such notice.
If the landlord is an artificial entity,
pursuant to Supreme Court Rule 57, service of the notice or process may be made
by leaving a copy
thereof at its office or place of business
as set forth in the lease with an agent authorized by appointment or by law to
receive service of process.
(b) In lieu of personal service or service by copy of the notice or process
required by this Code, a copy of
such notice or process may be sent
by registered or certified mail or 1st-class mail as evidenced by a certificate
of mailing postage-prepaid,
addressed to the tenant at the leased
premises, or to the landlord at the landlord's business address as set forth in
the lease or as otherwise
provided by landlord, or if the landlord is
an artificial entity, pursuant to Supreme Court Rule 57, at its office or place
of business. The return receipt
of the notice, whether signed, refused
or unclaimed, sent by registered or certified mail, or the certificate of
mailing if sent by 1st-class mail, shall
be held and considered to be prima
facie evidence of the service of the notice or process.
(c) In the alternative, service of notice or process may also be obtained by 1
of the following 2 alternatives:
(1) Posting of the notice on the rental unit, when combined with a return
receipt or certificate of mailing; or
(2) Personal service by a special process-server appointed by the Court.
5114. Notice; contractual notice between the parties.
(a) A person has notice of a fact if:
(1) The person has actual knowledge of it;
(2) The person has received a notice pursuant to the provisions of this Code; or
(3) From all the facts and circumstances known at the time in question, such
person has reason to know
that it exists.
5115. Application for a forthwith summons.
Where the landlord alleges and by substantial evidence demonstrates to the Court
that a tenant has caused
substantial or irreparable harm to
landlord's person or property, or where the tenant alleges and by substantial
evidence demonstrates to the
Court that the landlord has caused
substantial or irreparable harm to the tenant's person or property, the Justice
of the Peace Court shall issue
a forthwith summons to expedite
the Court's consideration of the allegations.
5116. Fair housing provisions.
(a) No person, being an owner or agent of any real estate, house, apartment or
other premises, shall refuse
or decline to rent, subrent,
sublease, assign or cancel any existing rental agreement to or of any tenant or
any person by reason of race,
creed, religion, marital status,
color, sex, national origin, disability, age or occupation or because the tenant
or person has a child or
children in the family.
(b) No person shall demand or receive a greater sum as rent for the use and
occupancy of any premises
because the person renting or desiring
to rent the premises is of a particular race, creed, religion, marital status,
color, sex, national origin,
disability, age or occupation or has a child
or children in the family.
(c) In the event of discrimination under this section, the tenant may recover
damages sustained as a result of
the landlord's action, including, but
not limited to, reasonable expenditures necessary to obtain adequate substitute
housing.
(d) Notwithstanding subsection (a) of this section relating to age
discrimination, and consistent with federal
and state fair housing acts, a
landlord may make rental units available exclusively for rental by senior
citizens. A senior citizen rental
unit shall be available for rent solely to
senior citizens, without regard to race, creed, religion, marital status, color,
sex, national origin, disability
or occupation of the senior citizen and
without regard to whether or not the senior citizen has a dependent child or
children in the residence.
5117. Remedies for violation of the rental agreement or the Code.
(a) For any violation of the rental agreement or this Code, or both, by either
party, the injured party shall
have a right to maintain a cause of
action in any court of competent civil jurisdiction.
(b) In satisfaction of any judgment obtained by the landlord for rental
arrearage or unlawful destruction of
property, the wages of the judgment
debtor may be attached in the manner provided by law.
5118. Summary of residential landlord-tenant code.
A summary of the Landlord-Tenant Code, as prepared by the Consumer Protection
Unit of the Attorney
General's Office or its successor
agency, shall be given to the new tenant at the beginning of the rental term. If
the landlord fails to provide
the summary, the tenant may plead
ignorance of the law as a defense.
5119. [Reserved.].
[Reserved.]
5120. Landlord liens; distress for rent.
(a) The right of the landlord of distress for rent is hereby abolished, except
as otherwise provided herein.
(b) Unless perfected before the effective date of this code, no lien on behalf
of the landlord in the personal
property and possessions of the
tenant shall be enforceable, except as otherwise provided herein.
5121. Confession of judgment.
A provision of a written rental agreement authorizing a person other than the
tenant to confess judgment
against the tenant is void and
unenforceable.
Subchapter II. Definitions
5141. Definitions.
The following words, terms and phrases, when used in this Part, shall have the
meanings ascribed to them
in this section, except where the
context clearly indicates a different meaning:
(1) "Action" shall mean any claim advanced in a court proceeding in
which rights are determined.
(2) "Building and housing codes" shall include any law, ordinance or
governmental regulation concerning
fitness for habitation or the
construction, maintenance, operation, occupancy, use or appearance of any
premises or dwelling unit.
(3) "Certificate of mailing" shall mean United States Postal Form No.
3817, or its successor.
(4) "Commercial rental unit" shall mean any lot, structure or portion
thereof, which is occupied or rented
solely or primarily for commercial or
industrial purposes.
(5) "Disabled or handicapped" person shall have the same meaning as
found in the Americans with
Disabilities Act (1992) as amended.
(6) "Equivalent substitute housing" shall mean a rental unit of like
or similar location, size, facilities and
rent.
(7) "Extended absence" shall mean any absence of more than 7 days.
(8) "Forthwith summons" shall mean any summons requiring the personal
appearance of a party or
person(s) at the earliest convenience of the
court.
(9) "Good faith dispute" shall mean the manifestation of an honest
difference of opinion relating to the
rights of the parties to a rental agreement
pursuant to such agreement, or pursuant to this Code.
(10) "Holdover" or "holdover tenant" shall mean a tenant who
wrongfully retains possession or who
wrongfully exercises control of the rental unit
after the expiration or termination of the rental agreement.
(11) "Injunction" shall mean a court order prohibiting a party from
doing an act or restraining a party from
continuing an act.
(12) "Landlord" shall mean:
a. The owner, lessor or sub-lessor of the rental unit or the property of which
it is a part and, in addition,
shall mean any person authorized to
exercise any aspect of the management of the premises, including any person who,
directly or indirectly,
receives rents or any part thereof other
than as a bona fide purchaser and who has no obligation to deliver the whole of
such receipts to another
person; or
b. Any person held out by any landlord as the appropriate party to accept
performance, whether such
person is a landlord or not; or
c. Any person with whom the tenant normally deals as a landlord; or
d. Any person to whom the person specified in subparagraphs b. and c. of this
paragraph is directly or
ultimately responsible.
(13) "Legal holiday" shall mean any date designated as a legal holiday
under 501 of Title 1.
(14) "Local government unit" shall mean a political subdivision of
this State, including, but not limited to, a
county, city, town or other
incorporated community or subdivision of the subdivision providing local
government service for residents
in a geographically limited area of
the State as its primary purpose, and has the power to act primarily on behalf
of the area.
(15) "Month to month" shall mean a renewable term of 1 month.
(16) "Normal wear and tear" shall mean the deterioration in the
condition of a property or premises by the
ordinary and reasonable use of such
property or premises.
(17) a. "Owner" shall mean 1 or more persons, jointly or severally, in
whom is vested:
1. All or part of the legal title to property; or
2. All or part of the beneficial ownership, usufruct and a right to present use
and enjoyment of the
premises.
b. The word "owner" shall include a mortgagee in possession.
(18) "Person" shall include an individual, artificial entity pursuant
to Supreme Court Rule 57, government
or governmental agency, business
trust, 2 or more persons having a joint or common trust or any other legal or
commercial entity.
(19) "Pet deposit" shall mean any deposit made to a landlord by a
tenant to be held for the term of the rental
agreement, or any part thereof, for
the presence of an animal in a rental unit.
(20) "Premises" shall mean a rental unit and the structure of which it
is a part, and the facilities and
appurtenances therein, grounds, areas and
facilities held out for the use of tenants generally, or whose use is contracted
for between the landlord and
the tenant.
(21) "Rental agreement" shall mean and include all agreements, written
or oral, which establish or modify
the terms, conditions, rules,
regulations or any other provisions concerning the use and occupancy of a rental
unit.
(22) "Rental unit," "dwelling unit" or "dwelling
place" shall mean any house, building, structure, or portion
thereof, which is occupied, rented or
leased as the home or residence of 1 or more persons.
(23) "Security deposit" shall mean any deposit, exclusive of a pet
deposit, given to the landlord which is to
be held for the term of the rental
agreement or for any part thereof.
(24) "Senior citizen" shall mean any person, 62 years of age or older,
regardless of the age of such person's
spouse.
(25) "Support animal" shall mean any animal individually trained to do
work or perform tasks to meet the
requirements of a disabled person,
including, but not limited to, minimal protection work, rescue work, pulling a
wheelchair or retrieving
dropped items.
(26) "Tenant" shall mean a person entitled under a rental agreement to
occupy a rental unit to the exclusion
of others, and the word "tenant" shall
include an occupant of any premises pursuant to a conditional sales agreement.
(27) "Utility services" shall mean water, sewer, electricity or fuel.
CHAPTER 53. LANDLORD OBLIGATIONS AND TENANT REMEDIES
Sec.
5301. Landlord obligation; rental agreement.
5302. Tenant remedy; termination at the beginning of term.
5303. Landlord obligation to supply possession of rental unit.
5304. Tenant's remedies for failure to supply possession.
5305. Landlord obligations relating to the rental unit.
5306. Tenant's remedies relating to the rental unit; termination.
5307. Tenant's remedies relating to the rental unit; repair and deduction from
rent.
5308. Essential services; landlord obligation and tenant remedies.
5309. Fire and casualty damage; landlord obligation and tenant remedies.
5310. "Assurance money" prohibited.
5311. Fees.
5312. Metering and charges for utility services.
5313. Unlawful ouster or exclusion of tenant.
5314. Tenant's right to early termination.
5315. Taxes paid by tenant; setoff against rent; recovery from owner.
5301. Landlord obligation; rental agreement.
(a) A rental agreement shall not provide that a tenant:
(1) Agrees to waive or forego rights or remedies under this Code;
(2) Authorizes any person to confess judgment on a claim arising out of the
rental agreement;
(3) Agrees to the exculpation or limitation of any liability of the landlord
arising under law or to indemnify
the landlord for that liability or the costs
connected therewith.
(b) A provision prohibited by subsection (a) of this section which is included
in the rental agreement is
unenforceable. If a landlord attempts to
enforce provisions of a rental agreement known by the landlord to be prohibited
by subsection (a) of this
section the tenant may bring an action
to recover an amount equal to 3 months rent, together with costs of suit but
excluding attorneys' fees.
5302. Tenant remedy; termination at the beginning of term.
(a) If the landlord fails to substantially conform to the rental agreement, or
if there is a material
noncompliance with any code, statute, ordinance
or regulation governing the maintenance or operation of the premises, the tenant
may, on written notice to
the landlord, terminate the rental
agreement and vacate the premises at any time during the 1st month of occupancy,
so long as the tenant
remains in possession in reliance on
a promise, whether written or oral, by the landlord to correct all or any part
of the condition or conditions
which would justify termination by the
tenant under this section.
(b) If the tenant remains in possession in reliance on a promise, whether
written or oral, by the landlord, to
correct all or any part of the condition
or conditions which would justify termination by the tenant under this section;
and if substantially the same
act or omission which constitutes a
prior noncompliance, of which prior notice was given under subsection (a) of
this section, recurs within 6
months, the tenant may terminate the
rental agreement upon at least 15 days' written notice, which notice shall
specify the breach and the date of
termination of the rental agreement.
(c) If there exists any condition which deprives the tenant of a substantial
part of the benefit or enjoyment
of the tenant's bargain, the tenant may
notify the landlord in writing of the condition; and, if the landlord does not
remedy the condition within 15
days, the tenant may terminate the
rental agreement. The tenant must then initiate an action in the Justice of the
Peace Court seeking a
determination that the landlord has
breached the rental agreement by depriving the tenant of a substantial part of
the benefit or enjoyment of
the bargain and may seek damages,
including a rent deduction from the date written notice of the condition was
given to the landlord.
(d) If the condition referred to in subsection (c) of this section was caused
wilfully or negligently by the
landlord, the tenant may recover the
greater of:
(1) The difference between the rent payable under the rental agreement and all
expenses necessary to obtain
equivalent substitute housing for
the remainder of the rental term; or
(2) An amount equal to 1 month's rent and the security deposit.
(e) The tenant may not terminate the rental agreement for a condition caused by
the want of due care by the
tenant, a member of tenant's family
or any other person on the premises with the tenant's consent. If a tenant
terminates wrongfully, the tenant
shall remain obligated under the rental
agreement.
5303. Landlord obligation to supply possession of rental unit.
The landlord shall supply the rental unit bargained for at the beginning of the
term and shall put the tenant
into full possession.
5304. Tenant's remedies for failure to supply possession.
(a) If the landlord fails to put the tenant into full possession of the rental
unit at the beginning of the agreed
term, the rent shall abate during any
period the tenant is unable to enter and:
(1) Upon notice to the landlord, the tenant may terminate the rental agreement
at any time the tenant is
unable to enter into possession; and the
landlord shall return all monies paid to the landlord for the rental unit,
including any pre-paid rent, pet
deposit and security deposit; and
(2) If such inability to enter is caused wrongfully by the landlord or by anyone
with the landlord's consent
or license due to substantial failure to
conform to existing building and housing codes, the tenant may recover
reasonable expenditures necessary
to secure equivalent substitute
housing for up to 1 month. In no event shall such expenditures under this
subsection exceed the agreed
upon rent for 1 month. Such
expenditures may be recovered by appropriate action or proceeding or by
deduction from the rent upon the
submission of receipts for same.
(b) If such inability to enter results from the wrongful occupancy of a holdover
tenant and the landlord has
not brought an action for summary
possession against such holdover tenant, the entering tenant may maintain an
action for summary
possession against the holdover tenant. The
expenses of such proceeding and substitute housing expenditures may be claimed
from the rent in the
manner specified in subsection (a)(2) of
this section.
5305. Landlord obligations relating to the rental unit.
(a) The landlord shall, at all times during the tenancy:
(1) Comply with all applicable provisions of any state or local statute, code,
regulation or ordinance
governing the maintenance, construction,
use or appearance of the rental unit and the property of which it is a part;
(2) Provide a rental unit which shall not endanger the health, welfare or safety
of the tenants or occupants
and which is fit for the purpose for
which it is expressly rented;
(3) Keep in a clean and sanitary condition all common areas of the buildings,
grounds, facilities and
appurtenances thereto which are
maintained by the landlord;
(4) Make all repairs and arrangements necessary to put and keep the rental unit
and the appurtenances
thereto in as good a condition as they
were, or ought by law or agreement to have been, at the commencement of the
tenancy; and
(5) Maintain all electrical, plumbing and other facilities supplied by the
landlord in good working order.
(b) If the rental agreement so specifies, the landlord shall:
(1) Provide and maintain appropriate receptacles and conveniences for the
removal of ashes, rubbish and
garbage and arrange for the
frequent removal of such waste; and
(2) Supply or cause to be supplied, water, hot water, heat and electricity to
the rental unit.
(c) The landlord and tenant may agree by a conspicuous writing, separate from
the rental agreement, that
the tenant is to perform specified
repairs, maintenance tasks, alterations or remodeling, but only if:
(1) The particular work to be performed by the tenant is for the primary benefit
of the rental unit; and
(2) The work is not necessary to bring a noncomplying rental unit into
compliance with a building or
housing code, ordinance or the like; and
(3) Adequate consideration, apart from any provision of the rental agreement, or
a reduction in the rent is
exchanged for the tenant's promise. In
no event may the landlord treat any agreement under this subsection as a
condition to any provision of
rental agreements; and
(4) The agreement of the parties is entered into in good faith and is not for
the purpose of evading an
obligation of the landlord.
(d) Evidence of compliance with the applicable building and housing codes shall
be prima facie evidence
that the landlord has complied with
this chapter or with any other chapter of Part III of this title.
5306. Tenant's remedies relating to the rental unit; termination.
(a) If there exists any condition which deprives the tenant of a substantial
part of the benefit or enjoyment
of the tenant's bargain, the tenant may
notify the landlord in writing of the condition and, if the landlord does not
remedy the condition within 15
days following receipt of notice, the
tenant may terminate the rental agreement. If such condition renders the
premises uninhabitable or poses an
imminent threat to the health,
safety or welfare of the tenant or any member of the family, then tenant may,
after giving notice to the
landlord, immediately terminate the rental
agreement without proceeding in a Justice of the Peace Court.
(b) The tenant may not terminate the rental agreement for a condition caused by
the want of due care by the
tenant, a member of the family or
any other person on the premises with the tenant's consent. If a tenant
terminates wrongfully, the tenant
shall remain obligated under the rental
agreement.
(c) If the condition referred to in subsection (a) of this section was caused
wilfully or negligently by the
landlord, the tenant may recover the
greater of:
(1) The difference between rent payable under the rental agreement and all
expenses necessary to obtain
equivalent substitute housing for the
remainder of the rental term; or
(2) An amount equal to 1 month's rent and the security deposit.
5307. Tenant's remedies relating to the rental unit; repair and deduction
from rent.
(a) If the landlord of a rental unit 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 a rental
agreement; 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;
or
(2) Fails to initiate reasonable corrective measures where appropriate,
including, but not limited to, the
obtaining of an estimate of the
prospective costs of the correction, within 10 days from the receipt of the
notice;
Then the tenant may immediately do or have done the necessary work in a
professional manner. After the
work is done, the tenant may deduct
from the rent a reasonable sum, not exceeding $200, or one-half of 1 month's
rent, whichever is less, for the
expenditures by submitting to the
landlord copies of those receipts covering at least the sum deducted.
(b) In no event may a tenant repair or cause anything to be repaired at the
landlord's expense when the
condition complained of was caused by
the want of due care by the tenant, a member of the tenant's family or another
person on the premises with
the tenant's consent.
(c) A tenant who is otherwise delinquent in the payment of rent may not take
advantage of the remedies
provided in this section.
(d) The tenant is liable for any damage to persons or property where such damage
was caused by the tenant
or by someone authorized by the
tenant in making said repairs.
5308. Essential services; landlord obligation and tenant remedies.
(a) If the 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
in violation of the rental
agreement; or in violation of a provision of
this Code; or in violation of an applicable housing code 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:
(1) Upon written notice of the continuation of the problem to the landlord,
immediately terminate the rental
agreement; or
(2) Upon written notice to the landlord, keep two-thirds per diem rent accruing
during any period when hot
water, heat, water, electricity or
equivalent substitute housing is not supplied. The landlord may avoid this
liability by a showing of
impossibility of performance.
(b) If the tenant has given the notice required under subsection (a) of this
section and remains in the rental
unit and the landlord still fails to
provide water, hot water, heat and electricity to the rental unit as specified
in the applicable city or county
housing code in violation of the rental
agreement, the tenant may:
(1) Upon written notice to the landlord, immediately terminate the rental
agreement; or
(2) Upon notice to the landlord, procure equivalent substitute housing for as
long as heat, water, hot water
or electricity is not supplied, during
which time the rent shall abate, and the landlord shall be liable for any
additional expense incurred by the
tenant, up to one half of the amount of
abated rent. This additional expense shall not be chargeable to the landlord if
landlord is able to show
impossibility of performance; or
(3) Upon written notice to the landlord, tenant may withhold two-thirds per diem
rent accruing during any
period when hot water, heat, water or
equivalent substitute housing is not supplied.
(c) Rent withholding does not act as a bar to the subsequent recovery of damages
by a tenant if those
damages exceed the amount withheld.
(d) Where a landlord files an action for summary possession, claiming that a
tenant has wrongfully
withheld rent or deducted money from rent
under this section and the court so finds, the landlord shall be entitled to
receive from the tenant either
possession of the premises or an amount
of money equal to the amount wrongfully withheld ("damages") or, if
the court finds the tenant acted in bad
faith, an amount of money equal to
double the amount wrongfully withheld ("double damages"). In the event
the court awards damages or
double damages and court costs
excluding attorneys' fees, then the court shall issue an order requiring such
damages or double damages to
be paid by the tenant to the landlord
within 10 days from the date of the court's judgment. If such damages are not
paid in accordance with the
court's order, the judgment for
damages or double damages, together with court costs, shall become a judgment
for the amount withheld,
plus summary possession, without
further notice to the tenant.
5309. Fire and casualty damage; landlord obligation and tenant remedies.
(a) If the rental unit or any other property or appurtenances necessary to the
enjoyment thereof are
damaged or destroyed by fire or casualty to
an extent that enjoyment of the rental unit is substantially impaired, and such
fire or other casualty occurs
without fault on the part of the tenant, or
a member of the tenant's family, or another person on the premises with the
tenant's consent, the tenant
may:
(1) Immediately quit the premises and promptly notify the landlord, in writing,
of the tenant's election to
quit within 1 week after vacating, in which
case the rental agreement shall terminate as of the date of vacating. If the
tenant fails to notify the landlord
of the tenant's election to quit, the
tenant shall be liable for rent accruing to the date of the landlord's actual
knowledge of the tenant's vacating
the rental unit or impossibility of
further occupancy; or
(2) If continued occupancy is lawful, vacate any part of the premises rendered
unusable by fire or casualty,
in which case the tenant's liability for
rent shall be reduced in proportion to the diminution of the fair rental value
of the rental unit.
(b) If the rental agreement is terminated, the landlord shall timely return any
security deposit, pet deposit
and pre-paid rent, except that to which
the landlord is entitled to retain pursuant to this Code. Accounting for rent in
the event of termination or
apportionment shall be made as of the
date of the fire or casualty.
5310. "Assurance money" prohibited.
(a) In every transaction wherein an application is made by a prospective tenant
to lease a dwelling unit, the
prospective landlord or owner of the
dwelling unit shall not ask for, nor receive, any "assurance money" or
other payment which is not an
application fee, security deposit, pet
deposit or similar deposit reserving the dwelling unit for the prospective
tenant for a time certain. The
prospective landlord shall not charge the
prospective tenant, as a fee for any credit or other type of investigation, any
more than the specific cost of
such investigation. For purposes of
this section, "assurance money" shall mean any payment to the
prospective landlord by a prospective
tenant, except an application fee, a
payment in the way of a security deposit, pet deposit or similar deposit,
reserving the dwelling unit for the
prospective tenant for a time certain
or the reimbursing of the specific sums expended by the landlord in credit or
other investigations.
(b) Each landlord shall retain, for a period of 6 months, the records of each
application made by any
prospective tenant. Upon any complaint of
a violation of this section, the Consumer Protection Unit of the Attorney
General's office shall investigate
the same, shall interview tenants of the
landlord and shall, under appropriate search warrant, have the right to
investigate all records of the
landlord pertaining to applications made
within the preceding 6 months. If such investigation reveals good cause for the
Attorney General's office to
believe there has been a violation of
this section, the Attorney General's office may issue such cease and desist
orders in accordance with 2517
of Title 29 as are required to
remedy the violation.
5311. Fees.
Except for an optional service fee for actual services rendered, such as a pool
fee or tennis court fee, a
landlord shall not charge to a tenant any
nonrefundable fee as a condition for occupancy of the rental unit.
5312. Metering and charges for utility services.
(a) A landlord may install, operate and maintain meters or other appliances for
measurement to determine
the consumption of utility services by
each rental unit. Only if the rental agreement so provides, and in compliance
with this section, may a
landlord charge a tenant separately for the
utility services as measured by such meter or other appliance. With the
exception of metering systems
already in use prior to July 17, 1996, a
landlord shall not separately charge a tenant for any utility service, unless
such utility service is separately
metered. The metering system may
be inspected by and must be approved by the Division of Weights and Measures.
(b) No landlord shall require that any tenant contract directly with the
provider of a utility service for
service to a tenant or to a rental unit, unless
such rental unit is separately metered. No landlord who purchases utility
services in bulk shall charge any
tenant individually for utility services,
unless such utility services are either individually metered or the cost of such
services is included as part of
each monthly rental payment, as
provided for in the rental agreement.
(c) A landlord who charges a tenant separately for utility services under this
section shall not charge the
tenant an amount for such services
which exceeds the actual cost of the utility service as determined by the cost
of the service charged by the
provider to the landlord or to any
company owned in whole or in part by the landlord.
(d) Any tenant who is charged and who pays for utility services separately to
the landlord shall be entitled
to inspect the bills and records upon
which such charges were calculated, during the landlord's regular business hours
at the landlord's regular
business office. A landlord shall retain
such bills and records for 1 year from the date upon which tenants were billed.
(e) Charges for utility services made by a landlord to a tenant shall be
considered rent for all purposes
under this Code. With respect to security
deposits, and unless the rental agreement otherwise provides, the rights and
obligations of the parties as to
payment and nonpayment of utility
charges shall be enforced in the same manner as the rights and obligations of
the parties relating to payment
and nonpayment of rent. A
landlord shall not discontinue or terminate utility service for nonpayment of
rent, utility charges or other
breach.
(f) A landlord who charges separately for utilities in accordance with this
section shall bill the tenant for
such charges not less frequently than
monthly, and shall use reasonable efforts to obtain actual readings of meters or
appliances for
measurements, which readings shall reasonably
coincide with the landlord's bulk billing. If, despite reasonable effort, a
landlord is unable to obtain an
actual reading, the landlord may estimate
the tenant's utility consumption and bill the tenant for such estimated amount;
provided however, that a
landlord may not send more than 2
consecutive estimated billings. Notwithstanding the foregoing, an actual reading
shall be made upon the
commencement of the lease and at the
expiration or termination of the lease.
(g) (1) A landlord, upon request by a tenant, shall cause to be examined or
tested the meter or appliance for
measurement. If the meter or
appliance so tested or examined is found to be accurate within commercially
reasonable limits, the costs
and expenses of such test or
examination shall be paid by the tenant as additional rent; but if the meter or
appliance is found to be not
accurate, then such costs and
expenses shall be borne by the landlord, who shall forthwith replace the
inaccurate meter or other
appliance.
(2) In addition to those rights and powers vested by law in the Consumer
Protection Unit of the Attorney
General's office or its successor
agency, the Attorney General's office may enter, by and through its agents,
experts or examiners, upon any
premises for the purpose of making
the examination and tests provided for in this section, and may set up and use
on such premises any
apparatus and appliances necessary
therefor.
(h) A landlord who installs, operates and maintains meters or other appliances
for measurement and who
bills tenants separately for utilities,
shall not be deemed a public utility, nor shall the Public Service Commission
have any authority, power or
jurisdiction over such landlords or
their practices in connection with the installation, operation and maintenance
of meters or other appliances
for measurement, the reading of
meters, calculation and determination of charges for utility services or
otherwise. The Consumer Protection
Unit of the Attorney General's office
shall have authority to enforce this section.
5313. Unlawful ouster or exclusion of tenant.
If removed from the premises or excluded therefrom by the landlord or the
landlord's agent, except under
color of a valid court order authorizing
such removal or exclusion, the tenant may recover possession or terminate the
rental agreement. The tenant
may also recover treble the
damages sustained or an amount equal to 3 times the per diem rent for the period
of time the tenant was
excluded from the unit, whichever is
greater, and the costs of the suit excluding attorneys' fees.
5314. Tenant's right to early termination.
(a) Except as is otherwise provided in this Part, whenever either party to a
rental agreement rightfully
elects to terminate, the duties of each party under the rental agreement shall
cease and all parties shall
thereupon discharge any remaining obligations as soon as is practicable.
(b) Upon 30 days' written notice, which 30-day period shall begin on the 1st day
of the month following
the day of actual notice, the tenancy may be terminated:
(1) By the tenant, whenever a change in location of the tenant's employment with
the tenant's present
employer requires a change in the location of the tenant's residence in excess
of 30 miles;
(2) By the tenant, whenever the serious illness of the tenant or the death or
serious illness of a
member of the tenant's immediate family, residing therein, requires a change in
the location of the tenant's
residence on a permanent basis;
(3) By the tenant, when the tenant is accepted for admission to a senior
citizens' housing facility,
including subsidized public or private housing, or a group or cooperative living
facility or retirement home;
(4) By the tenant, when the tenant is accepted for admission into a rental unit
subsidized by a
governmental entity or by a private nonprofit corporation, including subsidized
private or public housing;
(5) By the tenant who, after the execution of such rental agreement, enters the
military service of the
United States on active duty; or
(6) By the surviving spouse or personal representative of the estate of the
tenant, upon the death of
the tenant.
5315. Taxes paid by tenant; setoff against rent; recovery from owner.
Any tax laid upon lands or tenements according to law which is paid by or levied
from the tenant of such
lands or tenements, or a person
occupying and having charge of same, shall be a setoff against the rent or other
demand of the owner for
the use, or profits, of such premises. If
there is no rent or other demand sufficient to cover the sum so paid or levied,
the tenant or other person
may demand and recover the same
from the owner, with costs. This provision shall not affect any contract between
the landlord and tenant.
CHAPTER 55. TENANT OBLIGATIONS AND LANDLORD REMEDIES
Sec.
5501. Tenant obligations; rent.
5502. Landlord remedies for failure to pay rent.
5503. Tenant obligations relating to rental unit; waste.
5504. Defense to an action for waste.
5505. Tenant's obligation relating to defective conditions.
5506. Tenant obligation; notice of extended absence.
5507. Landlord remedies for absence or abandonment.
5508. Landlord remedies; restrictions on subleasing and assignments.
5509. Tenant obligation to permit reasonable access.
5510. Landlord remedy for unreasonable refusal to allow access.
5511. Rules and regulations; tenant obligations.
5512. Rules and regulations relating to certain buildings; landlord remedies.
5513. Landlord remedies relating to breach of rules and covenants.
5514. Security deposit.
5515. Landlord's remedies relating to holdover tenants.
5516. Retaliatory acts prohibited.
5517. Preference of rent in cases of execution.
5501. Tenant obligations; rent.
(a) The landlord and tenant shall agree to the consideration for rent. In the
absence of such agreement, the
tenant shall pay to the landlord a
reasonable sum for the use and occupation of the rental unit.
(b) Rent shall be payable at the time and place agreed to by the parties. Unless
otherwise agreed, the entire
rent shall be payable at the
beginning of any term for 1 month or less, while 1 month's rent shall be payable
at the beginning of each
month of a longer term.
(c) Except for purposes of payment, rent shall be uniformly apportioned from day
to day.
(d) Where the rental agreement provides for a late charge payable to the
landlord for rent not paid at the
agreed time, such late charge shall not
exceed 5 percent of the monthly rent. A late charge is considered as additional
rent for the purposes of this
Code. The late charge shall not be
imposed within 5 days of the agreed time for payment of rent. The landlord
shall, in the county in which the
rental unit is located, maintain an
office or other permanent place for receipt of payments, where rent may be
timely paid. Failure to maintain
such an office, or other permanent
place of payment where rent may be timely paid, shall extend the agreed on time
for payment of rent by 3
days beyond the due date.
(e) If a landlord accepts a cash payment for rent, the landlord shall, within 15
days, give to the tenant a
receipt for that payment. The landlord
shall, for a period of 3 years, maintain a record of all cash receipts for rent.
5502. Landlord remedies for failure to pay rent.
(a) A landlord or the landlord's agent may, any time after rent is due,
including the time period between
the date the rent is due and the date under this Code when late fees may be
imposed, demand payment
thereof and 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. If
the tenant remains in default, the landlord may thereafter bring an action for
summary possession of the
dwelling unit or any other proper proceeding, action or suit for possession.
(b) A landlord or the landlord's agent may bring an action for rent alone at any
time after the landlord
has demanded payment of past-due rent and has notified the tenant of the
landlord's intention to bring such
an action. This action may include late charges, which have accrued as
additional rent.
(c) If a tenant pays all rent due before the landlord has initiated an action
against the tenant and the
landlord accepts such payment without a written reservation of rights, the
landlord may not then initiate an
action for summary possession or for failure to pay rent.
(d) If a tenant pays all rent due after the landlord has initiated an action for
nonpayment or late payment
of rent against the tenant and the landlord accepts such payment without a
written reservation of rights,
then the landlord may not maintain that action for past due rent.
5503. Tenant obligations relating to rental unit; waste.
A tenant shall:
(1) Comply with all obligations imposed upon tenants by applicable provisions of
all municipal, county and
state codes, regulations, ordinances
and statutes;
(2) Keep that part of the premises which the tenant occupies and uses as clean
and safe as the conditions of
the premises permit;
(3) Dispose from the rental unit all ashes, rubbish, garbage and other organic
or flammable waste, in a
clean and safe manner;
(4) Keep all plumbing fixtures used by the tenant as clean and safe as their
condition permits;
(5) Use in a reasonable manner all electrical, plumbing, sanitary, heating,
ventilating and other facilities
and appliances in the premises;
(6) Not wilfully or wantonly destroy, deface, damage, repair or remove any part
of the structure or rental
unit or the facilities, equipment or
appurtenances thereto, nor permit any person on the premises with the tenant's
permission to do any such
thing; and
(7) Comply with all covenants, rules, requirements and the like which are in
accordance with 5511 and
5512 of this title; and which the
landlord can demonstrate are reasonably necessary for the preservation of the
property and persons of the
landlord, other tenants or any other
person.
5504. Defense to an action for waste.
(a) It shall be a complete defense to any action, suit or proceeding for waste
if the tenant alleges and
establishes that the tenant notified the
landlord a reasonable time in advance of the repair, alteration or replacement
and that such repair,
alteration or replacement:
(1) Is one which a prudent owner of an estate in fee simple absolute of the
affected property would be likely
to make in view of the conditions
existing on or in the neighborhood of the affected property; or
(2) Has not reduced the market value of the reversion or other interest of the
plaintiff; and
(3) If the conditions set forth in (a)(1) or (a)(2) of this section exist, and
the landlord makes a demand that
the tenant posts security to protect
against a failure to complete the proposed work, and against any responsibility
for expenditures incident to
the making of such proposed
repairs, alterations or replacements as the court demands.
(b) This section shall not be interpreted to bar an action for damages for
breach of a written rental
agreement nor bar an action or summary
proceeding based on breach of a written rental agreement.
5505. Tenant's obligation relating to defective conditions.
(a) Any defective condition of the premises which comes to the tenant's
attention, and which the tenant has
reason to believe is the duty of the
landlord or of another tenant to repair, shall be reported in writing by the
tenant to the landlord as soon as
is practicable. The tenant shall be
responsible for any liability or injury resulting to the landlord as a result of
the tenant's failure to timely
report such condition.
(b) A tenant on whom a complaint in ejectment or an action against the premises
is served shall
immediately notify the landlord in writing.
(c) The provisions of this section shall not apply where the landlord has actual
notice of the defective
condition.
5506. Tenant obligation; notice of extended absence.
The landlord may require in the rental agreement that the tenant notify the
landlord in writing of any
anticipated extended absence from the
premises no later than the 1st day of such absence.
5507. Landlord remedies for absence or abandonment.
(a) If the rental agreement provides for notification to the landlord by the
tenant of an anticipated extended
absence as defined in this Code or in
the rental agreement, and the tenant fails to comply with such requirement, the
tenant shall indemnify the
landlord for any harm resulting from
such absence.
(b) The landlord may, during any extended absence of the tenant, enter the
rental unit as is reasonably
necessary for inspection, maintenance
and safekeeping.
(c) Unless otherwise agreed to in the rental agreement, the tenant shall use the
rental unit only as the
tenant's abode. A violation of this covenant
shall constitute the breach of a rule under 5511 of this title, and shall
entitle the landlord to proceed as
specified elsewhere in this chapter.
(d) If the tenant wrongfully quits the rental unit and unequivocally indicates
by words or deeds the tenant's
intention not to resume tenancy, such
action by the tenant shall entitle the landlord to proceed as specified
elsewhere in this chapter and the tenant
shall be liable for the lesser of the
following for such abandonment:
(1) The entire rent due for the remainder of the term and expenses for actual
damages caused by the tenant
(other than normal wear and tear)
which are incurred in preparing the rental unit for a new tenant; or
(2) All rent accrued during the period reasonably necessary to re-rent the
premises at a fair rental; plus the
difference between such fair rental
and the rent agreed to in the prior rental agreement; plus expenses incurred to
re-rent; repair damage caused
by the tenant (beyond normal
wear and tear); plus a reasonable commission, if incurred by the landlord for
the re-renting of the premises.
In any event, the landlord has a duty
to mitigate damages.
(e) If there is no appeal from a judgment granting summary possession under
subsection (c) or (d) of this
section, the landlord may immediately
remove and store, at the tenant's expense, any and all items left on the
premises by the tenant. Seven days
after the appeal period has expired,
the property shall be deemed abandoned and may be disposed of by the landlord
without further notice or
liability.
5508. Landlord remedies; restrictions on subleasing and assignments.
(a) Unless otherwise agreed in writing, the tenant may sublet the premises or
assign the rental agreement to
another.
(b) The rental agreement may restrict or prohibit the tenant's right to assign
the rental agreement in any
manner. The rental agreement may
restrict the tenant's right to sublease the premises by conditioning such right
on the landlord's consent. Such
consent shall not be unreasonably
withheld.
(c) In any proceeding under this section to determine whether or not consent has
been unreasonably
withheld, the burden of showing
reasonableness shall be on the landlord.
5509. Tenant obligation to permit reasonable access.
(a) The tenant shall not unreasonably withhold consent for the landlord to enter
into the rental unit in order
to inspect the premises, make
necessary repairs, decorations, alterations or improvements, supply services as
agreed to or exhibit the
rental unit to prospective purchasers,
mortgagees or tenants. A tenant shall have the right to install a new lock at
the tenant's cost, on the
condition that:
(1) The tenant notifies the landlord in writing and supplies the landlord with a
key to the lock;
(2) The new lock fits into the system already in place; and
(3) The lock installation does not cause damage to the door.
(b) The landlord shall not abuse this right of access nor use it to harass a
tenant. The landlord shall give the
tenant at least 48 hours' notice of
landlord's intent to enter, except for repairs requested by the tenant, and
shall enter only between 8:00 a.m.
and 9:00 p.m. As to prospective
tenants or purchasers only, the tenant may expressly waive in a signed addendum
to the rental agreement or
other separate signed document
the requirement that the landlord provide 48 hours' notice prior to the entry
into the premises. In the case of
an emergency the landlord may
enter at any time.
(c) The tenant shall permit the landlord to enter the rental unit at reasonable
times in order to obtain
readings of meters or appliances for
measurement of utility consumption in accordance with 5312 of this title.
5510. Landlord remedy for unreasonable refusal to allow access.
(a) The tenant shall be liable to the landlord for any harm proximately caused
by the tenant's unreasonable
refusal to allow access. Any court of
competent jurisdiction may issue an injunction against a tenant who has
unreasonably withheld access to
the rental unit.
(b) The landlord shall be liable to the tenant for any theft, casualty or other
harm proximately resulting
from an entry into the rental unit by landlord,
its employees or agents or with landlord's permission or license:
(1) When the tenant is absent and has not specifically consented to the entry;
(2) Without the tenant's actual consent when tenant is present and able to
consent; and
(3) In any other case, where the harm suffered by the tenant is due to the
landlord's negligence.
(c) Repeated demands for unreasonable entry or any actual entry which is
unreasonable and not consented
to by the tenant may be treated by
the tenant as grounds for termination of the rental agreement. Any court of
competent jurisdiction may
issue an injunction against such
unreasonable demands on behalf of 1 or more tenants.
(d) Every agreement or understanding between a landlord and a tenant which
purports to exempt the
landlord from any liability imposed by this
section, except consent to a particular entry, shall be null and void.
5511. Rules and regulations; tenant obligations.
(a) The tenant and all others in the premises with the consent of the tenant
shall obey all obligations or
restrictions, whether denominated by the
landlord as "rules," "regulations," "restrictions"
or otherwise, concerning the tenant's use, occupation and
maintenance of the rental unit,
appurtenances thereto and the property of which the rental unit is a part, if:
(1) Such obligations and restrictions promote the health, safety, quiet, private
enjoyment or welfare, peace
and order of the tenants; promote the
preservation of the landlord's property from abuse; and promote the fair
distribution of services and
facilities provided for all tenants generally;
and
(2) Such obligations and restrictions are brought to the attention of the tenant
at the time of the tenant's
entry into the agreement to occupy the
rental unit; and
(3) Such obligations and restrictions are reasonably related to the purpose for
which they are promulgated;
and
(4) Such obligations and restrictions apply to all tenants of the property in a
fair manner; and
(5) Such obligations and restrictions are sufficiently explicit in the
prohibition, direction or limitation of the
tenant's conduct to fairly inform tenant
of what tenant must or must not do to comply; and
(6) Such obligations or restrictions, if not made known to the tenant at the
commencement of tenancy, are
brought to the attention of the tenant
and if said obligations work a substantial modifications of the lease agreement
they have been consented to
in writing by tenant.
(b) All tenants and other guests of the premises with the consent of tenant
shall conduct themselves in a
manner that does not unreasonably
interfere with the peaceful enjoyment of the other tenants.
5512. Rules and regulations relating to certain buildings; landlord
remedies.
Any provision of the Landlord-Tenant Code to the contrary notwithstanding, all
rental agreements for the
rental of single rooms in certain
buildings may be terminated immediately upon notice to the tenant for a tenant's
material violation of a
regulation which has been given to a
tenant at the time of contract or lease, and the landlord shall be entitled to
bring a proceeding for possession
where:
(1) The building is the primary residence of the landlord; and
(2) No more than 3 rooms in the building are rented to tenants; and
(3) No more than 3 tenants occupy such building.
5513. Landlord remedies relating to breach of rules and covenants.
(a) If the tenant breaches any rule or covenant which is material to the rental
agreement, the landlord
shall notify the tenant of such breach in writing, and shall allow at least 7
days after such notice for remedy
or correction of the breach. This section shall not apply to late payment of
rent which is covered under
5502 of this title.
(1) Such notice shall substantially specify the rule allegedly breached and
advise the tenant that, if
the violation continues after 7 days, the landlord may terminate the rental
agreement and bring an action for
summary possession. Such notice shall also state that it is given pursuant to
this section, and if the tenant
commits a substantially similar breach within 1 year, the landlord may rely upon
such notice as grounds for
initiating an action for summary possession. The issuance of a notice pursuant
to this section does not
establish that the initial breach of the rental agreement actually occurred for
purposes of this section.
(2) If the tenant's breach can be remedied by the landlord, as by cleaning,
repairing, replacing a
damaged item or the like, the landlord may so remedy the tenant's breach and
bill the tenant for the actual
and reasonable costs of such remedy. Such billing shall be due and payable as
additional rent, immediately
upon receipt.
(3) If the tenant's breach of a rule or covenant also constitutes a material
breach of an obligation
imposed upon tenants by a municipal, county or state code, ordinance or statute,
the landlord may
terminate the rental agreement and bring an action for summary possession.
(b) When a breach by a tenant causes or threatens to cause irreparable harm to
any person or property,
or the tenant is convicted of a class A misdemeanor or felony during the term of
the tenancy which caused
or threatened to cause irreparable harm to any person or property, the landlord
may, without notice, remedy
the breach and bill the tenant as provided in subsection (a) of this section;
immediately terminate the rental
agreement upon notice to the tenant and bring an action for summary possession;
or do both.
(c) Upon notice to tenant, the landlord may bring an action or proceeding for
waste or for breach of
contract for damages suffered by the tenant's wilful or negligent failure to
comply with tenant's
responsibilities under the preceding section. The landlord may request a
forthwith summons.
5514. Security deposit.
(a)(1) A landlord may require the payment of security deposit.
(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.
(3) No landlord may require a security deposit in excess of 1 month's rent (with
the exception of
federally-assisted housing regulations), for primary residential tenancies of
undefined terms or month to
month where the tenancy has lasted 1 year or more. After the expiration of 1
year, the landlord shall
immediately return, as a credit to the tenant, any amount in excess of 1 month's
rent.
(4) The security deposit limits set forth above shall not apply to furnished
rental units.
(b) Each security deposit shall be placed by the landlord in an escrow bank
account in a
federally-insured banking institution with an office that accepts deposits
within the State. Such account
shall be designated as a security deposits account and shall not be used in the
operation of any business by
the landlord. The landlord shall disclose to the tenant the location of the
security deposit account. The
security deposit principal shall be held and administered for the benefit of the
tenant, and the tenant's claim
to such money shall be prior to that of any creditor of the landlord, including,
but not limited to, a trustee in
bankruptcy, even if such money is commingled.
(c) The purpose of the security deposit shall be:
(1) To reimburse the landlord for actual damages caused to the premises by the
tenant which exceed
normal wear and tear, or which cannot be corrected by painting and ordinary
cleaning; and/or
(2) To pay the landlord for all rental arrearage due under the rental agreement,
including late charges
and rental due for premature termination or abandonment of the rental agreement
by the tenant; and/or
(3) To reimburse the landlord for all reasonable expenses incurred in renovating
and rerenting the
premises caused by the premature termination of the rental agreement by the
tenants, which includes
termination pursuant to 5314 of this title, providing that reimbursement
caused by termination pursuant to
5314 of this title shall not exceed 1 month's rent.
(d) Where a tenant is required to pay a fee to determine the tenant's credit
worthiness, such fee is an
application fee. A landlord may charge an application fee, not to exceed the
greater of either 10 percent of
the monthly rent for the rental unit or $50, to determine a tenant's credit
worthiness. The landlord shall,
upon receipt of any money paid as an application fee, furnish a receipt to the
tenant for the full amount
paid by the tenant, and shall maintain for a period of at least 2 years,
complete records of all application
fees charged and amounts received for each such fee. Where the landlord
unlawfully demands more than
the allowable application fee, the tenant shall be entitled to damages equal to
double the amount charged as
an application fee by the landlord.
(e) If the landlord is not entitled to all or any portion of the security
deposit, the landlord shall remit the
security deposit within 20 days of the expiration or termination of the rental
agreement.
(f) Within 20 days after the termination or expiration of any rental agreement,
the landlord shall provide
the tenant with an itemized list of damages to the premises and the estimated
costs of repair for each and
shall tender payment for the difference between the security deposit and such
costs of repair of damage to
the premises. Failure to do so shall constitute an acknowledgment by the
landlord that no payment for
damages is due. Tenant's acceptance of a payment submitted with an itemized list
of damages shall
constitute agreement on the damages as specified by the landlord, unless the
tenant, within 10 days of the
tenant's receipt of such tender of payment, objects in writing to the amount
withheld by the landlord.
(g) Penalties.
(1) Failure to remit the security deposit or the difference between the security
deposit and the amount
set forth in the list of damages within 20 days from the expiration or
termination of the rental agreement
shall entitle the tenant to double the amount wrongfully withheld.
(2) Failure by a landlord to disclose the location of the security deposit
account within 20 days of a
written request by a tenant or failure by the landlord to deposit the security
deposit in a federally-insured
financial institution with an office that accepts deposits within the State,
shall constitute forfeiture of the
security deposit by the landlord to the tenant. Failure by the landlord to
return the full security deposit to
the tenant within 20 days from the effective date of forfeiture shall entitle
the tenant to double the amount
of the security deposit.
(h) All communications and notices, including the return of any security deposit
under this section, shall
be directed to the landlord at the address specified in the rental agreement and
to the tenant at an address
specified in the rental agreement or to a forwarding address, if provided in
writing by the tenant at or prior
to the termination of the rental agreement. Failure by the tenant to provide
such address shall relieve the
landlord of landlord's responsibility to give notice herein and landlord's
liability for double the amount of
the security deposit as provided herein, but the landlord shall continue to be
liable to the tenant for any
unused portion of the security deposit; provided, that the tenant shall make a
claim in writing to the
landlord within 1 year from the termination or expiration of the rental
agreement.
(i) Pet deposits.
(1) A landlord may require a pet deposit. Damage to the rental unit caused by an
animal shall first be
deducted from the pet deposit. Where the pet deposit is insufficient, such
damages may be deducted from
the security deposit. A pet deposit is subject to subsections (b), (e), (f), (g)
and (h) of this section.
(2) No landlord may require a pet deposit in excess of 1 month's rent,
regardless of the duration of
the rental agreement.
(3) A landlord may require an additional deposit from a tenant with a pet, but
shall not require any
pet deposit from a tenant if the pet is a duly certified and trained support
animal for a disabled person who
is a resident of the rental unit.
(j) If the rental agreement so specifies, a landlord may increase the security
deposit commensurate with
the rent. If the increase of the security deposit will exceed 10 percent of the
monthly rent, payment of the
increased security deposit shall be prorated over the term of the rental
agreement, except in the case of
month-to-month tenancy, in which case payment of the increase shall be prorated
over a period of 4
months.
5515. Landlord's remedies relating to holdover tenants.
(a) Except as is otherwise provided in this Code, whenever either party to a
rental agreement rightfully
elects to terminate, the duties of each party under the rental agreement shall
cease.
(b) Whenever the term of the rental agreement expires, as provided herein or by
the exercise by the
landlord of a right to terminate given the landlord under any section of this
Code, if the tenant continues in
possession of the premises after the date of termination without the landlord's
consent, such tenant shall pay
to the landlord a sum not to exceed double the monthly rental under the previous
agreement, computed and
pro-rated on a daily basis, for each day the tenant remains in possession for
any period. In addition, the
holdover tenant shall be responsible for any further losses incurred by the
landlord as determined by a
proceeding before any court of competent jurisdiction.
5516. Retaliatory acts prohibited.
(a) Retaliatory acts are prohibited.
(b) A retaliatory act is an attempt on the part of the landlord to: pursue an
action for summary possession
or otherwise cause the tenant to quit
the rental unit involuntarily; demand an increase in rent from the tenant; or
decrease services to which the
tenant is entitled after:
(1) 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 to the landlord or to an authority charged
with the enforcement of such
code or ordinance; or
(2) A state or local government authority has filed a notice or complaint of
such violation of a building,
housing, sanitary or other code or
ordinance; or
(3) The tenant has organized or is an officer of a tenant's organization; or
(4) The tenant has pursued or is pursuing any legal right or remedy arising from
the tenancy.
(c) If the tenant proves that the landlord has instituted any of the actions set
forth in subsection (b) of this
section within 90 days of any
complaints or act as enumerated above, such conduct shall be presumed to be a
retaliatory act.
(d) It shall be a defense to a claim that the landlord has committed a
retaliatory act if:
(1) The landlord has given appropriate notice under a section of this part which
allows a landlord to
terminate early;
(2) The landlord seeks in good faith to recover possession of the rental unit
for immediate use as landlord's
own residence;
(3) The landlord seeks in good faith to recover possession of the rental unit
for the purpose of substantially
altering, remodeling or demolishing
the premises;
(4) The landlord seeks in good faith to recover possession of the rental unit
for the purpose of immediately
terminating, for at least 6 months,
use of the premises as a rental unit;
(5) The complaint or request of the landlord relates to a condition or
conditions caused by the lack of
ordinary care by the tenant or other person
in the household, or on the premises with the tenant's consent;
(6) The rental was, on the date of filing of tenant's complaint or request or on
the date of appropriate notice
prior to the end of the rental term, in
full compliance with all codes, statutes and ordinances;
(7) The landlord has in good faith contracted to sell the property and the
contract of sale contains a
representation by the purchaser conforming
to paragraphs (2), (3) or (4) of this subsection;
(8) The landlord is seeking to recover possession of the rental unit on the
basis of a notice to terminate a
periodic tenancy, which notice was
given to the tenant prior to the complaint or request;
(9) The condition complained of was impossible to remedy prior to the end of the
cure period;
(10) The landlord has become liable for a substantial increase in property taxes
or a substantial increase in
other maintenance or operating
costs not associated with the landlord complying with the complaint or request,
and such liability occurred
not less than 4 months prior to the
demand for the increase in rent, and the increase in rent does not exceed the
pro-rata portion of the net
increase in taxes or cost;
(11) The landlord has completed a substantial capital improvement of the rental
unit or the property of
which it is a part, not less than 4 four
months prior to the demand for increased rent, and such increase in rent does
not exceed the amount which
may be claimed for federal income
tax purposes as a straight-line depreciation of the improvement, pro-rated among
the rental units benefited
by the improvement; or
(12) The landlord can establish, by competent evidence, that the rent now
demanded of the tenant does not
exceed the rent charged other
tenants of similar rental units in the same complex, or the landlord can
establish that the increase in rent is
not directed at the particular tenant
as a result of any retaliatory acts.
(e) Any tenant from whom possession of the rental unit has been sought, or who
the landlord has otherwise
attempted to involuntarily
dispossess, in violation of this section, shall be entitled to recover 3 months'
rent or treble the damages
sustained by tenant, whichever is
greater, together with the cost of the suit but excluding attorneys' fees.
5517. Preference of rent in cases of execution.
Liability of goods levied upon for 1 year's rent:
(1) If goods, chattels or crops of a tenant being upon premises held by the
tenant by demise under a rent of
money are seized by virtue of any
process of execution, attachment or sequestration, the goods and chattels shall
be liable for 1 year's rent of
the premises in arrear, or growing
due, at the time of the seizure, in preference to such process; accordingly the
landlord shall be paid such
rent, not exceeding 1 year's rent, out of
the proceeds of the sale of such goods and chattels, before anything shall be
applicable to such process.
(2) The sheriff, or other officer, who sells the goods and chattels of a tenant
upon process of execution,
attachment or sequestration shall at
least 10 days before such sale give written notice of the time and place thereof
to the landlord, if residing in
the county, and if not, to any known
agent of the landlord in the county.
CHAPTER 57. SUMMARY POSSESSION
Sec.
5701. Jurisdiction and venue.
5702. Grounds for summary proceeding.
5703. Who may maintain proceeding.
5704. Commencement of action and notice of complaint.
5705. Service and filing of notice.
5706. Manner of service.
5707. Contents of complaint generally.
5708. Additional contents of certain complaints.
5709. Answer.
5710. Trial.
5711. Judgment.
5712. Default judgment.
5713. Jury trials.
5714. Compelling attendance of jurors.
5715. Execution of judgment; writ of possession.
5716. Stay of proceedings by tenant; good faith dispute.
5717. Stay of proceedings on appeal.
5718. Proceedings in forma pauperis.
5701. Jurisdiction and venue.
An action for summary possession in accordance with 5702 of this title
shall be maintained in the Justice
of the Peace Court which handles civil cases and which is closest to the
premises or commercial rental unit
and in the same county. For purposes of this chapter, the term "rental
agreement" shall include a lease for a
commercial rental unit.
5702. Grounds for summary proceeding.
Unless otherwise agreed in a written rental agreement, an action for summary
possession may be
maintained under this chapter because:
(1) The tenant unlawfully continues in possession of any part of the premises
after the expiration of the
rental agreement without the permission of the landlord or, where a new tenant
is entitled to possession,
without the permission of the new tenant;
(2) The tenant has wrongfully failed to pay the agreed rent;
(3) The tenant has wrongfully deducted money from the agreed rent;
(4) The tenant has breached a lawful obligation relating to the tenant's use of
the premises;
(5) The tenant, employee, servant or agent of the landlord holds over for more
than 15 days after
dismissal when the housing is supplied by the landlord as part of the
compensation for labor or services;
(6) The tenant holds over for more than 5 days after the property has been duly
sold upon the
foreclosure of a mortgage and the title has been duly perfected;
(7) The rightful tenant of the rental unit has been wrongfully ousted;
(8) The tenant refuses to yield possession of the rental unit rendered partially
or wholly unusable by fire
or casualty, and the landlord requires possession for the purpose of effecting
repairs of the damage;
(9) The tenant is convicted of a class A misdemeanor or any felony during the
term of tenancy which
caused or threatened to cause irreparable harm to any person or property;
(10) A rental agreement for a commercial rental unit provides grounds for an
action for summary
possession to be maintained; or
(11) Or, if, and only if, it pertains to mobile home lots, for any of the
grounds set forth in the Mobile
Home Lots and Leases Act, as amended.
5703. Who may maintain proceeding.
The proceeding may be initiated by:
(1) The landlord;
(2) The owner;
(3) The tenant who has been wrongfully put out or kept out;
(4) The next tenant of the premises, whose term has begun; or
(5) The tenant.
5704. Commencement of action and notice of complaint.
(a) The proceeding shall be commenced by filing a complaint for possession with
the court.
(b) Upon commencement of an action, the court shall issue the process specified
in the praecipe and
shall cause service of the complaint on the defendant, together with a notice
stating the time and place of
the hearing. The notice shall further state that if the defendant shall fail at
such time to appear and defend
against the complaint, defendant may be precluded from afterwards raising any
defense or a claim based on
such defense in any other proceeding or action.
(c) The party requesting the issuance of process may file a motion for the
appointment of a special
process server, consistent with Justice of the Peace Court Civil Rules. The
party requesting the
appointment of a special process server may prepare a form of order for
signature by the clerk of court
under the seal of the court. Blank forms for a motion for the appointment of a
special process server and
for an order appointing such a special process server shall be provided by the
clerk of the court on request
of the party.
5705. Service and filing of notice.
(a) The notice of hearing and the complaint shall be served at least 5 days and
not more than 30 days
before the time at which the complaint is to be heard.
(b) The notice and complaint, together with proof of service thereof, shall be
filed with the court before
which the complaint is to be heard prior to the hearing, and in no event later
than 5 days after service. If
service has been made by certified or registered mail, the return receipt,
signed, refused or unclaimed, shall
be proof of service.
(c) Service of the notice and complaint may be made in any manner consistent
with either 5704 or
5706 of this title.
5706. Manner of service.
(a) Service of the notice of hearing and complaint shall be made in the same
manner as personal service
of a summons in an action.
(b) If service cannot be made in such manner, it shall be made by leaving a copy
of the notice and
complaint personally with a person of suitable age and discretion who resides or
is employed in the rental
unit.
(c) If no such person can be found after a reasonable effort, service may be
made:
(1) Upon a natural person by affixing a copy of the notice and complaint upon a
conspicuous part of
the rental unit within 1 day thereafter, and by sending by either certified mail
or 1st class mail with
certificate of mailing, using United States Postal Service Form 3817 or its
successor, an additional copy of
each document to the rental unit and to any other address known to the person
seeking possession as
reasonably chosen to give actual notice to the defendant; or
(2) If defendant is an artificial entity, pursuant to Supreme Court Rule 57, by
sending by certified
mail or by sending by 1st class mail with certificate of mailing, using United
States Postal Service Form
3817 or its successor, within 1 day after affixation, additional copies of each
document to the rental unit
and to the principal place of business of such defendant, if known, or to any
other place known to the party
seeking possession as reasonably chosen to effect actual notice.
(d) Service pursuant to this section shall be considered actual or statutory
notice.
5707. Contents of complaint generally.
The complaint shall:
(1) State the interest of the plaintiff in the rental unit from which removal is
sought;
(2) State the defendant's interest in the rental unit and defendant's
relationship to the petitioner with
regard thereto;
(3) Describe the rental unit from which removal is sought;
(4) State the facts upon which the proceeding is based and attach a copy of any
written notice of the
basis of the claim as an exhibit to the complaint; and
(5) State the relief sought which may include a judgment for rent due if the
notice of complaint contains
a conspicuous notice that such demand has been made.
5708. Additional contents of certain complaints.
If possession of the rental unit is sought on the grounds that the tenant has
violated or failed to observe a
lawful obligation in relation to tenant's use and enjoyment of the rental unit,
the complaint shall, in addition
to the requirements of the foregoing section:
(1) Set forth the rule or provision of the rental agreement allegedly breached,
together with the date the
rule was made known to the tenant and a copy of the rule or provision as
initially provided to the tenant and
the manner in which such rule or provision was made known to the tenant;
(2) Allege with specificity the facts constituting a breach of the rule or
provision of the rental agreement
and that notice or warning as required by law was given to the tenant;
(3) Set forth the facts constituting a continued or recurrent violation of the
rule or provision of the rental
agreement;
(4) Set forth the purpose served by the rule or provision of the rental
agreement allegedly breached; and
(5) Allege that where the rule is not a part of the rental agreement or any
other agreement of the landlord
and tenant at the time of the formation of the rental agreement, that it does
not work a substantial
modification of the tenant's bargain or, if it does, that the tenant consented
knowingly in writing to the rule.
5709. Answer.
At the time when the petition is to be heard, the defendant or any person in
possession or claiming
possession of the rental unit may answer orally or in writing. If the answer is
oral, the substance thereof
shall be endorsed on the complaint. The answer may contain any legal or
equitable defense or
counter-claim, not to exceed the jurisdiction of the court.
5710. Trial.
Where triable issues of fact are raised, they shall be tried by the court. At
the time when an issue is
joined, the court, at the application of either party and upon proof to its
satisfaction by affidavit or orally
that an adjournment is necessary to enable the applicant to procure necessary
witnesses or evidence or by
consent of all the parties who appear, may adjourn the trial, but not more than
10 days, except by consent
of all parties.
5711. Judgment.
(a) The court shall enter a final judgment determining the rights of the
parties. The judgment shall
award to the successful party the costs of the proceeding.
(b) The judgment shall not bar an action, proceeding or counterclaim commenced
or interposed within
60 days of entry of judgment for affirmative equitable relief which was not
sought by counterclaim in the
proceeding because of the limited jurisdiction of the court.
(c) If the proceeding is founded upon an allegation of forcible entry or
forcible holding out, the court
may award to the successful party a fixed sum as damages, in addition to the
costs.
5712. Default judgment.
(a) No judgment for the plaintiff shall be entered unless the court is
satisfied, upon competent proof,
that the defendant has received actual notice of the proceeding or, having
abandoned the rental unit, cannot
be found within the jurisdiction of the court after the exercise of reasonable
diligence. Posting and 1st-class
mail, as evidenced by a certificate of mailing, is acceptable as actual notice
for the purposes of a default
judgment.
(b) A party may, within 10 days of the entry of a default judgment or a nonsuit,
file a motion with the
court to vacate the judgment and if, after a hearing on the motion, the court
finds that the party has satisfied
the requirements of Justices of the Peace Civil Rule 20(b), it shall grant the
motion and permit the parties to
elect a trial before a single judge or a jury trial.
5713. Jury trials.
(a) In any civil action commenced pursuant to this chapter, the plaintiff may
demand a trial by jury at
the time the action is commenced and the defendant may demand a trial by jury
within 10 days after being
served. Upon receiving a timely demand, the justice shall appoint 6 impartial
persons of the county in
which the action was commenced to try the cause. In making such appointments,
the justice shall appoint
such persons from the jury list being used at time of appointment by the
Superior Court in the county where
the action was commenced.
(b) The jury shall be sworn or affirmed that they will "faithfully and
impartially try the cause pending
between the said plaintiff and defendant and make a true and just report
thereupon according to the
evidence" and shall hear the allegations of the parties and their proofs.
If either party fails to appear before
the jury, they may proceed in that party's absence. When the jury or any 4 of
them agree, they shall make a
report under their hands and return the same to the justice who shall give
judgment according to the report.
(c) If any juror appointed fails to appear or serve throughout the trial the
justice may supply a
replacement by appointing and qualifying another, but there shall be no trial by
jury if the defendant has
not appeared.
(d) In all other cases, the justice shall hear the case and give judgment
according to the right of the
matter and the law of the land.
(e) A Chief Magistrate shall have the authority to designate courts in each
county which can
accommodate a jury trial.
5714. Compelling attendance of jurors.
(a) In a proceeding under this chapter, the justice may require the attendance
of the jurors the justice
appoints, and may issue a summons under hand and seal to a constable for
summoning them to appear
before the court.
(b) If any juror duly summoned fails to appear as required, or to be qualified
and serve throughout the
trial, the juror shall, unless the juror shows to the justice a sufficient
excuse, be guilty of contempt and shall
be fined $50 which shall be levied with costs by distress and sale of the
juror's goods and chattels by virtue
of a warrant by the justice.
(c) The warrant shall be directed to a constable in the following manner:
County, ss. The State of
Delaware.
To any constable, greeting:
Whereas, ........ of ........ has been adjudged by ........, 1 of our justices
of the peace, to be guilty of a
contempt in making default after due summons as a juror in a case pending before
said justice and has been
ordered to pay a fine of $50 in pursuance of the act of assembly in such case
provided, and
Whereas, the said ........ has neglected to pay the said sum, we therefore
command you to levy the said sum
of $50 with ........ costs and your costs hereon by distress and sale of the
goods and chattels of the said
........ upon due notice given as upon other execution process.
Witness the hand and seal of the said justice the ..... day of 19 ...
5715. Execution of judgment; writ of possession.
(a) Upon rendering a final judgment for plaintiff, but in no case prior to the
expiration of the time for
the filing of an appeal or motion to vacate or open the judgment, the court
shall issue a writ of possession
directed to the constable or the sheriff of the county in which the property is
located, describing the
property and commanding the officer to remove all persons and put the plaintiff
into full possession.
(b) The officer to whom the writ of possession is directed and delivered shall
give at least 24 hours'
notice to the person or persons to be removed and shall execute it between the
hours of sunrise and sunset.
MANUFACTURED HOME. If the writ of possession being posted relates to the
possession of a rented lot
for manufactured housing, under Chapter 70 of this title, and, on or before the
date the writ of possession is
posted, the tenant has prepaid a per diem storage fee in an amount equivalent to
7 days' rent, then the court,
through its officers, may extend the notice period for the removal of the home
from the lot, to a maximum
period of 7 calendar days from the date of posting. In no event may the tenant
inhabit the home after the 1st
24 hours of the notice period. If the per diem charge above described has been
prepaid and the time for
removal has been extended, then 7 calendar days after the posting of the writ,
the manufactured home may
be removed by the landlord. If the period for removal of the home has not been
extended by a prepayment
of the per diem amount for storage, then 24 hours after the posting of the writ,
the home may be removed
from the lot by the landlord. In either event, after removal, the home must be
stored at the tenant's expense
for a period of 30 days before it can be disposed of through further legal
action. The tenant may not remove
the home from the storage location until the landlord has been reimbursed for
any judgment amount and the
reasonable cost of removal and storage of the manufactured home.
(c) The plaintiff has the obligation to notify the constable to take the steps
necessary to put the plaintiff
in full possession.
(d) The issuance of a writ of possession for the removal of a tenant cancels the
agreement under which
the person removed held the premises and annuls the relationship of landlord and
tenant. Plaintiff may
recover, by an action for summary possession, any sum of money which was payable
at the time when the
action for summary possession was commenced and the reasonable value of the use
and occupation to the
time when a writ of possession was issued and for any period of time with
respect to which the agreement
does not make any provision for payment of rent, including the time between the
issuance of the writ and
the landlord's actual recovery of the premises.
(e) If, at the time of the execution of the writ of possession, the tenant fails
to remove tenant's property,
the landlord shall have the right to and may immediately remove and store such
property for a period of 7
days, at tenant's expense, unless the property is a manufactured home and the
rental agreement is subject to
Chapter 70 of this title, in which case the manufactured home must be stored for
a period of 30 days. If, at
the end of such period, the tenant has failed to claim said property and to
reimburse the landlord for the
expense of removal and storage in a reasonable amount, such property and
possessions shall be deemed
abandoned and may be disposed of by the landlord without further notice or
obligation to the tenant.
Nothing in this subsection shall be construed to prevent the landlord from suing
for both rent and
possession at the same hearing.
(1) If there is no appeal from the judgment of summary possession at the time of
the execution of the
writ of possession and the tenant has failed to remove tenant's property, then
the landlord may immediately
remove and store such property for a period of 7 days, at tenant's expense,
unless the property is a
manufactured home and the rental agreement is subject to Chapter 70 of this
title, in which case the
manufactured home must be stored for a period of 30 days.
(2) If, at the end of such period, the tenant has failed to claim said property
and to reimburse the
landlord for the expense of removal and storage in a reasonable amount, such
property and possessions
shall be deemed abandoned and may be disposed of by the landlord without further
notice or obligation to
the tenant.
(3) All writs of possession where no appeal has been filed must contain the
following language:
NOTICE WHERE NO APPEAL FILED
If you do not remove your property from the premises within 24 hours, then the
landlord may immediately
remove and store your property for a period of 7 days at your expense, unless
the property is a
manufactured home and the rental agreement is subject to Chapter 70 of this
title, in which case the
manufactured home must be stored for a period of 30 days. If you fail to claim
your property and
reimburse the landlord prior to the expiration of the 7-day period, then the
landlord may dispose of your
property without any further legal action.
MANUFACTURED HOME. If the writ of possession being posted relates to the
possession of a rented lot
for manufactured housing, under Chapter 70 of this title, and, on or before the
date the writ of possession is
posted, the tenant has prepaid a per diem storage fee in an amount equivalent to
7 days' rent, then the court,
through its officers, may extend the notice period for the removal of the home
from the lot to a maximum
period of 7 calendar days from the date of posting. In no event may the tenant
inhabit the home after the
first 24 hours of the notice period. If the per diem charge above described has
been prepaid and the time for
removal has been extended, then 7 calendar days after the posting of the writ,
the manufactured home may
be removed by the landlord. If the period for removal of the home has not been
extended by a prepayment
of the per diem amount for storage, then 24 hours after the posting of the writ,
the home may be removed
from the lot by the landlord. In either event, after removal, the home must be
stored at the tenant's expense
for a period of 30 days before it can be disposed of through further legal
action. The tenant may not remove
the home from storage location until the landlord has been reimbursed for any
judgment amount and the
reasonable cost of removal and storage of the manufactured home.
(f) If, at the time of the execution of the writ of possession, an appeal of the
judgment of possession has
been filed:
(1) If there has been an appeal filed from a judgment of summary possession at
the time of the
execution of the writ of possession and the tenant has failed to remove property
within 24 hours, then the
landlord may immediately remove and store such property, at the tenant's
expense, for a period of 7 days
after the resolution of the appeal, unless the property is a manufactured home
and the rental agreement is
subject to Chapter 70 of this title, in which case the manufactured home must be
stored for a period of 30
days.
(2) If, at the end of such period, the tenant has failed to claim said property
and to reimburse the
landlord for the expense of removal and storage in a reasonable amount, such
property and possessions
shall be deemed abandoned and may be disposed of by the landlord without further
notice or obligation to
the tenant.
(3) All writs of possession, where an appeal has been filed, must contain the
following language:
NOTICE WHERE APPEAL HAS BEEN FILED
If you do not remove your property from the premises with 24 hours, then the
landlord may immediately
remove and store your property until 7 days after your appeal has been decided,
at your expense. If you fail
to claim your property and reimburse the landlord prior to the expiration of the
7-day period, then the
landlord may dispose of your property without any further legal action.
MANUFACTURED HOME. If the writ of possession being posted relates to the
possession of a rented lot
for manufactured housing, under Chapter 70 of this title, and, on or before the
date the writ of possession is
posted, the tenant has prepaid a per diem storage fee in an amount equivalent to
7 days' rent, then the court,
through its officers, may extend the notice period for the removal of the home
from the lot to a maximum
period of 7 calendar days from the date of posting. In no event may the tenant
inhabit the home after the 1st
24 hours of the notice period. If the per diem charge above described has been
prepaid and the time for
removal has been extended, then 7 calendar days after the posting of the writ,
the manufactured home may
be removed by the landlord. If the period for removal of the home has not been
extended by a prepayment
of the per diem amount for storage, then 24 hours after the posting of the writ,
the home may be removed
from the lot by the landlord. In either event, after removal, the home must be
stored at the tenant's expense
for a period of 30 days before it can be disposed of through further legal
action. The tenant may not remove
the home from storage location until the landlord has been reimbursed for any
judgment amount and the
reasonable cost of removal and storage of the manufactured home.
(g) Nothing in subsection (d) of this section shall prevent the landlord from
making a claim for rent due
from the tenant under the provisions of the lease. The landlord shall have the
duty of exercising diligence in
landlord's efforts to re-rent the premises. The landlord shall have the burden
of showing the exercise of
such diligence. The landlord shall have the right to sue for both rent and
possession at the same hearing.
(h) Whenever the plaintiff is put into full possession under this chapter it
shall be the duty of the
plaintiff, at the time actual repossession occurs, to have the locks to the
premises changed if said premises
are to be further leased out. Any plaintiff who fails to comply with this
subsection shall be liable to any
new tenant whose person or property is injured as a result of entry to the
premises gained by the
dispossessed tenant by use of a key still in their possession which fit the lock
to the premises at the time of
this tenancy.
5716. Stay of proceedings by tenant; good faith dispute.
When a final judgment is rendered in favor of the plaintiff in a proceeding
brought against a tenant for
failure to pay rent and the default arose out of a good faith dispute, the
tenant may stay all proceedings on
such judgment by paying all rent due at the date of the judgment and the costs
of the proceeding or by filing
with the court an undertaking to the plaintiff, with such assurances as the
court shall require, to the effect
that defendant will pay such rent and costs within 10 days of the final judgment
being rendered for the
plaintiff. At the expiration of said period, the court shall issue a warrant of
possession unless satisfactory
proof of payment is produced by the tenant.
5717. Stay of proceedings on appeal.
(a) Nonjury trials. With regard to nonjury trials, a party aggrieved by the
judgment rendered in such
proceeding may request in writing, within 5 days after judgment, a trial de novo
before a special court
comprised of 3 justices of the peace other than the justice of the peace who
presided at the trial, as
appointed by the chief magistrate or a designee, which shall render final
judgment, by majority vote, on the
original complaint within 15 days after such request for a trial de novo. No
such request shall stay
proceedings on such judgment unless the aggrieved party, at the time of making
such request, shall execute
and file with the Court an undertaking to the successful party, with such bond
or other assurances as may
be required by the Court, to the effect that the aggrieved party will pay all
costs of such proceedings which
may be awarded against that party and abide the order of the Court therein and
pay all damages, including
rent, justly accruing during the pendency of such proceedings. All further
proceedings in execution of the
judgment shall thereupon be stayed.
(b) An appeal taken pursuant to subsection (a) of this section may also include
claims and
counter-claims not raised in the initial proceeding; provided, that within 5
days of the filing of the appeal,
the claimant also files a bill of particulars identifying any new issues which
claimant intends to raise at the
hearing which were not raised in the initial proceeding.
(c) Jury trials. With regard to jury trials, a party aggrieved by the judgment
rendered in such proceeding
may request, in writing, within 5 days after judgment, a review by an appellate
court comprised of 3
justices of the peace other than the justice of the peace who presided at the
jury trial, as appointed by the
chief magistrate or a designee. This review shall be on the record and the party
seeking the review must
designate with particularity the points of law which the party appealing feels
were erroneously applied at
the trial court level. The decision on the record shall be by majority vote. No
such request shall stay
proceedings on such judgment unless the aggrieved party, at the time of making
such request, shall execute
and file with the Court an undertaking to the successful party, with such bond
or other assurances as may
be required by the Court, to the effect that the aggrieved party will pay all
costs of such proceedings which
may be awarded against that party and abide the order of the Court therein and
pay all damages, including
rent, justly accruing during the pendency of such proceedings. All further
proceedings in execution of the
judgment shall thereupon be stayed.
(d) The Court shall not issue the writ of possession during the 5-day appeal
period. After the 5-day
appeal period has ended, the Court may issue the writ of possession at the
plaintiff's request if the
defendant has filed an appeal, but not filed a bond or other assurance or an in
forma pauperis request to
stay the issuance of the writ of possession. If the plaintiff executes on the
writ of possession prior to a
determination of the appeal and the appealing party is ultimately successful,
then the plaintiff shall be
responsible for reasonable cover damages (including, but not limited to, the
cost of substitute housing or
relocation) for the period of the dispossession as a result of the execution of
the writ of possession, plus
court costs and fees.
(e) An aggrieved party may appeal in forma pauperis if the Court grants an
application for such status.
In that event, the Court may waive the filing fee and bond for a trial de novo,
a trial on the record or a
request to stay the writ of possession.
(f) An appeal taken pursuant to this section may include any issue on which
judgment was rendered at
the trial court level, including the issue of back rent due, any other statute
to the contrary notwithstanding.
5718. Proceedings in forma pauperis.
Upon application of a party claiming to be indigent, the Court may authorize the
commencement,
prosecution or defense of any civil action or civil appeal without pre-payment
of fees and costs or security
therefor by a person who makes an affidavit that such person is unable to pay
the costs or give security
therefore. Such affidavit shall state the nature of the action or defense and
the affiant's belief that the affiant
is entitled to redress, and shall state sufficient facts from which the Court
may make an objective
determination of the petition's alleged indigence.
The Court may, in its discretion, conduct a hearing on the question of
indigence. In any action in which
a claim for damages is asserted by a party seeking the benefit of this rule, the
Prothonotary shall, before
entering a dismissal of the claim or satisfaction of any judgment entered
therein, require payment of
accrued court costs from any party for whose benefit this rule has been applied
if said party has recovered
a judgment in said proceedings or received any funds in settlement thereof. A
party and such party's
attorney of record shall file appropriate affidavits in the event a claim is
sought to be dismissed without
settlement or recovery.
CHAPTER 59. TENANT'S RECEIVERSHIP
Sec.
5901. Petition for receivership; grounds, notice and jurisdiction.
5902. Necessary parties defendant.
5903. Defenses.
5904. Stay of judgment by defendant.
5905. Receivership procedures.
5906. Powers and duties of the receiver.
5907. Discharge of the receiver.
5901. Petition for receivership; grounds, notice and jurisdiction.
Any tenant or group of tenants may petition for the establishment of a
receivership in a Justice of the Peace
Court upon the grounds that there
has existed for 5 days or more after notice to the landlord:
(1) If the rental agreement, or any state or local statute, code, regulation or
ordinance, places a duty upon
the landlord to so provide, a lack of
heat, or of running water, or of light, or of electricity, or of adequate sewage
facilities;
(2) Any other conditions imminently dangerous to the life, health or safety of
the tenant.
5902. Necessary parties defendant.
(a) Petitioners shall join as defendants:
(1) All parties duly disclosed to any of them in accordance with 5106; and
(2) All parties whose interest in the property is:
a. A matter of public record; and
b. Capable of being protected in this proceeding.
(b) Petitioner shall not be prejudiced by a failure to join any other interested
parties.
5903. Defenses.
It shall be sufficient defense to this proceeding, if any defendant of record
establishes that:
(1) The condition or conditions described in the petition do not exist at the
time of trial; or
(2) The condition or conditions alleged in the petition have been caused by the
wilful or grossly negligent
acts of 1 or more of the petitioning
tenants or members of his or their families or by other persons on the premises
with his or their consent; or
(3) Such condition or conditions would have been corrected, were it not for the
refusal by any petitioner to
allow reasonable access.
5904. Stay of judgment by defendant.
(a) If, after a trial, the Court shall determine that the petition should be
granted, the Court shall
immediately enter judgment thereon and appoint a
receiver as authorized herein; provided, however, prior to the entry to judgment
and appointment of a
receiver, the owner or any mortgagee or
lienor of record or other person having an interest in the property may apply to
the Court to be permitted to
remove or remedy the conditions
specified in the petition. If such person demonstrates the ability to perform
promptly the necessary work
and posts security for the performance
thereof within the time, and in the amount and manner, deemed necessary by the
Court, then the Court may
stay judgment and issue an order
permitting such person to perform the work within a time fixed by the Court and
requiring such person to
report to the Court periodically on the
progress of the work. The Court shall retain jurisdiction over the matter until
the work is completed.
(b) If, after the issuance of an order under the foregoing provision but before
the time fixed in such order
for the completion of the work
prescribed therein, there is reason to believe that the work will not be
completed pursuant to the court's
order or that the person permitted to do
the same is not proceeding with due diligence, the Court or the petitioners,
upon notice to all parties to the
proceeding, may move that a
hearing be held to determine whether judgment should be rendered immediately as
provided in the following
subsection.
(c) (1) If, upon a hearing authorized in the preceding subsection, the Court
shall determine that such party
is not proceeding with due diligence,
or upon the actual failure of such person to complete the work in accordance
with the provisions of the
order, the Court shall appoint a receiver
as authorized herein.
(2) Such judgment shall direct the receiver to apply the security posted to
executing the powers and duties
as described herein.
(3) In the event that the amount of such security should be insufficient to
accomplish the above objectives,
such judgment shall direct the receiver
to collect the rents, profits and issues to the extent of the deficiency. In the
event that the security should
exceed the amount necessary to
accomplish the above objectives, such judgment shall direct the receiver to
return the excess to the person
posting the security.
5905. Receivership procedures.
The receiver shall be the Division of Consumer Protection of the State or its
successor agency.
(1) Upon its appointment, the receiver must make within 15 days an independent
finding whether there is
proper cause shown for the need for
rent to be paid to it and for the employment of a private contractor to correct
the condition complained of in
5901 of this title and found by the
Court to exist.
(2) If the receiver shall make such a finding, it shall file a copy of the
finding with the recorder of deeds of
the county where the property lies and
it shall be a lien on that property where the violation complained of exists.
(3) Upon completion of the aforesaid contractual work and full payment of the
contractor, the receiver shall
file a certification of such with the
recorder of deeds of the appropriate county, and this filing shall release the
aforesaid lien.
(4) The receiver shall forthwith give notice to all lienholders of record.
(5) If the receiver shall make a finding at such time or any other time that for
any reason the appointment of
a receiver is not appropriate, it shall
be discharged upon notification of the Court and all interested parties and
shall make legal distribution of
any funds in its possession.
5906. Powers and duties of the receiver.
The receiver shall have all the powers and duties accorded a receiver
foreclosing a mortgage on real
property and all other powers and duties
deemed necessary by the Court. Such powers and duties shall include, but are not
necessarily limited to,
collecting and using all rents and
profits of the property, prior to and despite any assignment of rent, for the
purposes of:
(1) Correcting the condition or conditions alleged in the petition;
(2) Materially complying with all applicable provisions of any state or local
statute, code, regulation or
ordinance governing the maintenance,
construction, use or appearance of the building and surrounding grounds;
(3) Paying all expenses reasonably necessary to the proper operation and
management of the property
including insurance, mortgage
payments, taxes and assessments and fees for the services of the receiver and
any agent he should hire;
(4) Compensating the tenants for whatever deprivation of their rental agreement
rights resulted from the
condition or conditions alleged in the
petition; and
(5) Paying the costs of the receivership proceeding.
5907. Discharge of the receiver.
(a) In addition to those situations described in 5905, the receiver may
also be discharged when:
(1) The condition or conditions alleged in the petition have been remedied;
(2) The property materially complies with all applicable provisions of any state
or local statute, code,
regulation or ordinance governing the
maintenance, construction, use or appearance of the building and the surrounding
grounds;
(3) The costs of the above work and any other costs as authorized herein have
been paid or reimbursed
from the rents and profits of the
property; and
(4) The surplus money, if any, has been paid over to the owner.
(b) Upon subsections (a)(1) and (2) of this section being satisfied, the owner,
mortgagee or any lienor may
apply for the discharge of the
receiver after paying to the latter all moneys expended by him and all other
costs which have not been paid
or reimbursed from the rent and
profits of the property.
(c) If the Court determines that future profits of the property will not cover
the costs of satisfying
subsections (a)(1) and (2) of this section, the
Court may discharge the receiver and order such action as would be appropriate
in the situation, including
but not limited to terminating the
rental agreement and ordering the vacation of the building within a specified
time. In no case shall the
Court permit repairs which cannot be
paid out of the future profits of the property.
PART IV
COMMERCIAL LEASES
CHAPTER 61. COMMERCIAL LEASES
Sec.
6101. Metering and charges for utility services.
6102. Definitions.
6103. Preference of rent in cases of execution.
6104. Confession of judgment.
6105. Taxes paid by tenant; setoff against rent; recovery from owner.
6101. Metering and charges for utility services.
Whenever any landlord or other person:
(1) Purchases utility service from a public utility and redistributes the same
to a tenant in a commercial unit
and/or in connection with the
operation of that commercial unit (e.g., the operation of the common area); and
(2) Continuously meters the tenant's use in that commercial unit to which it
redistributes the utility service
and continually meters the common
area;
Such landlord or other person may charge and collect from such tenant, by way of
rent or otherwise, an
amount not to exceed the amount the
tenants would be billed by the public utility for such utility service if the
same was directly metered by such
public utility.
6102. Definitions.
The following words, terms and phrases, when used in this Part, shall have the
meanings ascribed to them
in this section, except where the
context clearly indicates a different meaning:
(1) "Commercial unit" shall mean any lot, structure or portion thereof
which is occupied or rented for
commercial or industrial purposes.
(2) "Landlord" shall mean:
a. The owner, lessor or sub-lessor of the rental unit or the property of which
it is a part and, in addition,
shall mean any person authorized to
exercise any aspect of the management of the premises, including any person who,
directly or indirectly,
receives rents or any part thereof other
than as a bona fide purchaser and who has no obligation to deliver the whole of
such receipts to another
person;
b. Any person held out by any landlord as the appropriate party to accept
performance, whether such
person is a landlord or not;
c. Any person with whom the tenant normally deals as a landlord; or
d. Any person to whom the person specified in subparagraphs b. and c. of this
paragraph is directly or
ultimately responsible.
(3) "Owner" shall mean 1 or more persons, jointly or severally, in
whom is vested:
a. All or part of the legal title to property; or
b. All or part of the beneficial ownership, usufruct and a right to present use
and enjoyment of the
premises.
(4) "Person" shall include an individual, corporation, government or
governmental agency, business trust,
estate, trust, partnership or
association, 2 or more persons having a joint or common trust or any other legal
or commercial entity.
(5) "Premises" shall mean the rental unit and the structure of which
it is a part, and the facilities and
appurtenances therein, and ground, areas
and facilities held out for the use of tenants generally or whose use by the
tenant is promised by the
landlord.
(6) "Rental agreement" shall mean and include all agreements, written
or oral, which establish or modify
the terms, conditions, rules, regulations
or other provisions concerning the use and occupancy of a rental unit.
(7) "Rental unit" shall mean a commercial unit.
(8) "Tenant" shall mean a person entitled under a rental agreement to
occupy a rental unit to the exclusion
of others.
6103. Preference of rent in cases of execution.
Liability of goods levied upon for 1 year's rent:
(1) If goods, chattels or crops of a tenant being upon premises held by the
tenant by demise under a rent of
money are seized by virtue of any
process of execution, attachment or sequestration, the goods and chattels shall
be liable for 1 year's rent of
the premises in arrear, or growing
due, at the time of the seizure, in preference to such process; accordingly the
landlord shall be paid such
rent, not exceeding 1 year's rent, out of
the proceeds of the sale of such goods and chattels, before anything shall be
applicable to such process.
(2) The sheriff, or other officer, who sells the goods and chattels of a tenant
upon process of execution,
attachment or sequestration shall at
least 10 days before such sale give written notice of the time and place thereof
to the landlord, if residing in
the county, and if not, to any known
agent of the landlord in the county.
6104. Confession of judgment.
A provision of a written rental agreement authorizing a person other than the
tenant to confess judgment
against the tenant is void and
unenforceable.
6105. Taxes paid by tenant; setoff against rent; recovery from owner.
Any tax laid upon lands or tenements according to law which is paid by or levied
from the tenant of such
lands or tenements, or a person
occupying and having charge of same, shall be a setoff against the rent or other
demand of the owner for
the use or profits, of such premises. If
there is no rent or other demand sufficient to cover the sum so paid or levied,
the tenant or other person
may demand and recover the same
from the owner, with costs. This provision shall not affect any contract between
the landlord and tenant.
CHAPTER 63. DISTRESS FOR RENT
Sec.
6301. Action at law; jurisdiction; case in which distress lies.
6302. Form of claim; contents; costs.
6303. Order of distress; service of claim and order; levy; inventory; return;
duration of levy.
6304. Levied goods in custody of Court; removal and sale; plaintiff's interest.
6305. Protective measures upon a showing that a tenant may abscond.
6306. Procedure in the event of a forcible entry.
6307. Release of distrained property upon filing of bond.
6308. Answer to claim; hearing; final order of sale.
6309. Public sale of property distrained; notice of sale.
6310. Liability of officer.
6301. Action at law; jurisdiction; case in which distress lies.
(a) Distress for rent is hereby abolished except pursuant to a rental agreement
for a commercial unit and in
that event it shall be an action at law
which shall be brought as provided herein.
(b) The several courts of the justices of the peace shall have original
jurisdiction in all cases of distress for
unpaid rent regardless of the amount
of rent notwithstanding any other law to the contrary.
(c) A distress shall lie for any unpaid rent due either in money or in a
quantity of any tangible items, goods
or produce pursuant to any rental
agreement of a commercial unit.
6302. Form of claim; contents; costs.
(a) The claim for distress shall name the tenant as defendant and shall set
forth the name and address of the
landlord, the name and address of
the tenant and the facts as to any assignment of the rental agreement, the
premises leased, the date of the
rental agreement, the term of the
rental agreement, the rent required to be paid by the tenant, the amount of rent
in arrears and the plaintiff's
statement that there is reason to
believe the levied property would be disposed of absent the issuance of the
levy. The claim for distress shall
also set forth facts supporting the
plaintiff's reasonable belief that the goods on the leased premises to be levied
upon would be disposed of
absent the issuance of the writ. The
claim for distress shall be made under oath or affirmation by the plaintiff.
(b) The claim shall be filed in a Court of the Justice of the Peace located in
the county wherein the
commercial unit or a portion thereof is
situated.
(c) The costs in the action shall include the cost of the sale.
6303. Order of distress; service of claim and order; levy; inventory;
return; duration of levy.
(a) Upon the filing of an action of distress, a justice of the peace shall make
a determination as to the
claim's compliance with the provisions of
this chapter, and upon a determination of compliance, the Court shall promptly
issue an order requiring
plaintiff to file a cash bond or a bond
with surety in such amount and in such form as the Court shall determine and an
order to a constable or
sheriff of that county directing that all
goods on the leased premises be levied upon, once plaintiff has filed said bond.
A copy of the claim of
distress and order of levy shall be
served upon each tenant on the leased premises, as provided herein. The order
shall also set forth the time
and place where the defendant may
appear and make answer to the allegations in the claim.
(b) The levy may be made within the hours of 8:00 a.m. to 8:00 p.m.
(c) The officer making the levy shall then proceed to make an inventory of each
article of goods distrained
upon and shall deliver to each tenant
found on the premises, or if not so found, leave affixed to the premises, a copy
of the inventory as provided
herein.
(d) The officer serving the order shall make a return of his action to the
court, including the date and time
thereof.
(e) A levy for distress shall not remain in force for more than 60 days and if
the goods distrained are not
sold within that period they shall be
discharged from the levy.
6304. Levied goods in custody of Court; removal and sale; plaintiff's
interest.
(a) Except as hereinafter provided, goods levied upon by the constable or
sheriff shall remain on the leased
premises in the custody of the
Court unless released as hereinafter provided.
(b) Upon application to the Court by either party, the Court may allow the
removal, sale, or both, in whole
or in part, of the levied goods, upon
such terms and conditions as the Court deems necessary for the protection of the
parties and to avoid
irreparable harm, including the posting of
a bond by the tenant for the fair market value of the goods or other protective
measures, including the
appointment of a receiver, or the
depositing of sale proceeds with the court or a specified depository.
(c) Unless otherwise provided in accordance with subsection (b) of this section
or 6307, the plaintiff in an
action of distress shall have a
special property interest in the goods distrained until they are returned to the
defendant or sold by the
Court, so that he may take the goods
wherever found and recover damages for carrying away or injuring them.
6305. Protective measures upon a showing that a tenant may abscond.
Upon petition of the plaintiff in distress and upon a showing under oath or
affirmation of a need for
protective measures because the tenant may
abscond or remove and conceal his goods, the Court may take any or all of the
following protective
measures:
(1) The constable or sheriff shall be directed to make the levy forthwith and at
any time;
(2) The constable or sheriff can take actual possession of the goods levied upon
and remove same from the
leased premises to such place as
the Court may direct pending the release or sale of the goods. Removal of the
goods may, if the Court
deems it necessary, be conditioned on
the filing of a bond by the plaintiff in such amount and in such form as the
Court may determine but in an
amount not less than the fair market
value of the goods removed. The expense of removal of any goods from the leased
premises to any other
place for storage pending sale shall
be included as part of the costs of distress;
(3) The Court may order the levying officer to enter the premises forcibly if
entry cannot otherwise be
gained.
6306. Procedure in the event of a forcible entry.
Where entry is gained forcibly and if no tenant is found on the premises, a copy
of the claim and order shall
be affixed on a prominent place on
the interior of the leased premises. The constable or sheriff shall then proceed
to make an inventory of each
article of goods distrained and
leave affixed to the premises a copy of the inventory and shall attempt to
contact the tenant if his
whereabouts are known and leave the
premises locked and as safe and secure as possible. The constable or sheriff
serving the order shall make a
return of his action to the Court
including the date, time and manner of the forcible entry.
6307. Release of distrained property upon filing of bond.
Upon the filing of a bond with surety with the Court where the distress action
is pending, the Court may
release from the levy and return, or
release from the levy or return, the property to the tenant. The bond shall be
in an amount not exceeding the
fair market value of the goods levied
as determined by the Court or the amount of rent in arrears plus 2 months' rent,
whichever is less.
6308. Answer to claim; hearing; final order of sale.
(a) The defendant in an action of distress may file an answer to the action,
setting forth any defenses
defendant may have to the action. The
court shall schedule the hearing to be held promptly after the levy, but not
later than 5 days after the levy.
At the hearing, the Court may
determine and decide all issues raised, may issue an order for the sale of the
goods and may make such
orders in connection therewith as
may be required.
(b) In any final order for the sale of goods distrained, the Court shall have
power to increase the amount of
rent claimed to an amount equal to the sum of the plaintiff's original claim
plus rent accruing after the filing
of the claim for distress up to the day of sale on which rent may fall due.
(c) If the tenant named as defendant in an action for distress shall fail to
file an answer to the petition
for distress and/or appear at the time and place set for the hearing, the Court
may upon motion of the
plaintiff issue an order for the sale of the goods distrained.
6309. Public sale of property distrained; notice of sale.
After the expiration of 10 days from the day of the issuance of a final order of
sale by the Court, the officer
may sell the property, or so much thereof as is necessary to satisfy the rent
and all costs, at public vendue,
to the highest and best bidder, or bidders, first giving at least 6 days notice
of the sale by advertisement
posted in at least 5 public places in the county. All goods neither sold nor
retained by the landlord shall be
returned to the defendant.
6310. Liability of officer.
Any constable, sheriff or other officer of the Court acting in good faith
pursuant to an order of the Court as
provided herein shall not incur civil or criminal liability for his actions in
carrying out said order except for
any damage incurred as a result of his gross negligence or wilful misconduct.