An Overview of a Delaware Rental Agreement
A rental agreement is simply a legal term for what most people colloquially know as a lease. It is an agreement that usually is in written form between a landlord and a tenant for the lease of a home, apartment, or commercial space. There can be oral rental agreements, but these are very rare and are usually only seen in smaller short-term rentals such as by the night reservations for a room at a bed and breakfast.
The rental agreement is legally binding and governs how the landlord and the tenant will act and interact throughout the duration of the agreement. The rights and obligations of both parties , together with the use of the property, are described in the rental agreement. The rental agreement can be formally registered with the state of Delaware or it can be informal. Informal rental agreements between the landlord and tenant must still satisfy all of Delaware’s landlord-tenant laws even if the specific terms and conditions of the rental agreement typically found in a written rental agreement are not present.
Elements of Delaware Rental Agreements
Delaware rental agreements are drafted to include a variety of terms describing the rights and responsibilities the landlord and tenant may have. When drafting the agreement, it’s essential for the landlord to understand the issues that should be discussed with the tenant. This can be vital in resolving future disputes that may arise over the terms of occupancy.
to comply with Delaware law, several components must be included in any rental agreement:
The manner by which rent is assessed. Some rentals take fees for utilities that are included in the monthly rental payment. Others charge them separately and still others have a combination system with set fees for certain utilities and other utilities calculated based on metered usage. Any late fees or returned check fees that will be charged. The rules of the household, such as whether guests can stay more than a certain amount of time, whether pets are allowed, and whether smoking is prohibited in certain areas. Specifics about the security deposit, such as what sort of items may be deducted from the deposit before a refund is issued. Clarity about property maintenance. In some buildings and complexes, maintenance and repair are covered entirely by the landlord. In other rentals, maintenance will be the tenant’s responsibility. If you are a landlord seeking to rent residential property, we encourage you to address these issues now, before a dispute arises that could jeopardize your investment. For tenants, be aware of these components because you have rights as well.
Form and Format of Delaware Rental Agreements
In addition to outlining the rights and responsibilities of the landlord and the tenant, you should always ensure that you comply with relevant legal requirements for rental agreements in the state of Delaware:
State-Specific Laws
Rental agreements entered into after July 29, 2013, must include a statement informing the tenant that if two or more individuals are named as tenants, then all tenant are jointly and severally liable for all lessee obligations.
Disclosure Obligations
As with other states, landlords in Delaware must disclose certain information. Landlords must give the tenant a signed copy of the rental agreement at the time that it is executed. The signed copy must also include additional provisions showing that the tenant agrees to these additional items:
Discrimination
Delaware law prohibits discrimination in rental agreements: a landlord cannot refuse to rent to a tenant based on race, color, religion, national origin, sex, marital status, disability, sexual orientation, age, or income level. The Fair Housing Act of 1988 also prohibits discrimination based on disability or familial status.
Common Mistakes in Delaware Rental Agreements
One of the common pitfalls is when landlords do not have a written rental agreement. Without a rental agreement, landlords are likely to spend more in the long run trying to evict the tenant for non-payment of rent. Even if the parties have a verbal rental agreement or implied rental agreement (a rental agreement created by the circumstances) a written rental agreement is always preferred as it clearly lays out the agreement between the parties.
Another common pitfall is an ambiguous rental agreement. For example, if the rental agreement states that the tenant is responsible for heat and the legal term for "heat" includes "air conditioning", this may lead to a dispute as to what the landlord is responsible for. Additionally, are questions such as: does "water" include sewage or refuse removal? Does "repairs" include repairs to the roof or extermination? These situations can lead to disputes between a landlord and tenant, especially when there is no lease to guide the parties. While it is always better to be specific, sometimes the choices are extremely limited . Many places in Delaware have a set number of systems for utilities which may not include a system for refuse removal. The simplest way to avoid confusion is to consult a real estate attorney to draft the lease with both parties inputting their opinions.
An often overlooked common pitfall is whether the proper form notices have been given to tenants and whether the landlord has kept a record of the notice. Tenants are entitled under Delaware law to special notices which must be given within a specific time period. For example, if the tenant is late in paying rent, the landlord is required by law to give the tenant 5 days’ notice before bringing an action in Justice of the Peace. If a person tries to collect rent through a third party (such as a rental management company), at any point they are obligated to provide notice to the tenant that their rent payment is no longer coming from them. Failure to provide these notices could be deemed an unfair trade practice which can result in a $100 fine for each violation.
Amendments and Termination of Delaware Rental Agreements
The law prescribes general modification and termination rules for rental agreements in Delaware. These rules codify the right of either party to a rental agreement to make modifications or claim early termination of the lease as well as the right and obligation of landlords to remedy conditions that materially affect the health and safety of a tenant.
Modification by Agreement
A rental agreement may be modified in writing. In the event of modification, the Landlord must provide a copy to the tenant and vice versa. Similarly, any modification of a rental agreement does not affect any right or obligation that has previously accrued under the terms of the original agreement. Any remedies, however, remain available even after the termination of a rental agreement.
Modification by Landlord
Any notice provided by the landlord under the rental agreement to a tenant requiring the tenant to correct a condition in the premises will be deemed made upon delivery of the communication to the tenant. When such delivery is by mail, notice under the rental agreement is made five days after the date of mailing unless other evidence shows delivery.
Modification by Tenancy
If a tenant remains on the premises after expiration of a rental agreement, the lease will be extended from month to month in the absence of any provision to the contrary in the rental agreement. The new rent will be that specified in the expired lease or in the party’s oral agreement. The rental agreement will be deemed terminated if the tenant fails to make payment of rent when it is due and the landlord subsequently provides a written notification requesting that the rent be paid. If the tenant does not pay the rent within 7 days of receiving the notice, the landlord may terminate the rental agreement by providing a notice in writing.
However, if a lease requires the tenant to pay rent to another person, or the tenant mails the rent to the landlord, then the lease is only terminated if the rent is unpaid for 10 days after receipt of the notice. In either case, the notice will terminate the rental agreement 10 days after receipt of a noncomplying tenant unless payment is made. The parties may also agree to extend the rental agreement by a period longer than one month and any extension of this type will automatically terminate 60 days after a default notice is issued under this section. Proper notice will be necessary for any extension.
Helpful Materials on Delaware Rental Agreements
To further assist with the rental agreements or landlord/tenant issues, here are some resources available for both landlords and tenants.
Legal Assistance:
If you are a tenant and if you qualify, Delaware Volunteer Legal Services, Inc., ("DVLS") may be able to provide you with free legal services for your rental agreement, or other landlord/tenant issues. DVLS is a Delaware nonprofit organization that utilizes attorneys from the private sector to advocate on behalf of those lower income people in need of legal services.
The ultimate decision on whether or not DVLS can or will be able to assist you is left exclusively to DVLS and its volunteer attorneys. DVLS accepts questions from applicants, screens them, and refers them to volunteer attorneys only when they believe they have a REASONABLE LIKELIHOOD OF ASSISTANCE . Unfortunately, DVLS has a limited number of volunteer attorneys to whom they can refer applicants, and therefore cannot assist everyone seeking help.
Government Resources:
The Delaware Courts website has a section called "Tenants’ Rights" that provides tenants with general information about their rights.
The Kent County Property Tax Assessment Office has an "Application for Renter’s Tax Rebate", which is available for download from their home page. The rebate provides a refund against property taxes and is open to all residents of Delaware who rent an apartment or home, pay more than 10% of their income in rent with a net income of at least $20,000 and meet other eligibility requirements. The deadline for filing is August 31, 2012.
Forms:
Sample Rental Forms for Landlords and Tenants – Attorney Robert Kumpf has shared his sample rental agreement forms for landlords and tenants.