[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

Legal Opinion: GCH-0061

Index: 2.245

Subject: PH Due Process Determination: Delaware

June 22, 1992

DUE PROCESS DETERMINATION

for the

STATE OF DELAWARE

TABLE OF CONTENTS

I. Jurisdiction

II\. Elements of Due Process

III\. Overview of Delaware Eviction Procedure

IV\. Analysis of Delaware Eviction Procedure for

Each of the Regulatory Due Process Elements

V. Conclusion

ANALYSIS

I. Jurisdiction: Delaware

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of l937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR § 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

DELAWARE: DUE PROCESS DETERMINATION

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that State eviction procedures satisfy

this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of Delaware to determine if

eviction procedures under those laws require a hearing with all

of the regulatory \"elements of due process,\" as defined in

966.53(c).

HUD finds that the requirements of Delaware law governing a

summary proceeding for possession in the Delaware Justice of the

Peace court under Chapter 57 of the Delaware Code Annotated

(Del.C.) include all of the elements of basic due process, as

defined in 24 CFR 966.53(c). This conclusion is based upon

requirements contained in the Delaware Constitution, Code, case

law and court rules.

III\. Overview of Delaware Eviction Procedure

In Delaware, there is one eviction procedure. In 1972,

Delaware enacted a new eviction procedure, known as a summary

proceeding for possession. 25 Del.C., Chapter 57. This

procedure was intended by the legislature as an expedited form of

the original forcible detainer action. Authority for the

original forcible detainer action was expressly repealed by the

new law. Hopkins v. Justice of Peace Court No. 1, 342 A.2d 243,

244 (Del. Super. 1975).

After terminating the lease on 60 days notice, a landlord

begins the court action by filing a complaint for possession with

the justice of the peace in the county where the property is

located. Del.C. 5701 and 5704. Notice of the complaint and

hearing is served on the tenant ( 5705-5706) and the tenant may

submit an answer ( 5709). Trial was originally only to the

court ( 5710), but the statute was amended in 1975 by adding new

5713 and 5714, which provide for a jury trial in the Justice

of the Peace Court on request by either party. Cf. Hopkins v.

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DELAWARE: DUE PROCESS DETERMINATION

Justice of the Peace court No. 1, 342 A.2d 243 (Del. Super.

1975); Bomba\'s Restaurant & Cocktail Lounge, Inc. v. Lord De La

Warr Hotel, 389 A.2d 766 (Del. Supr. 1978). The judgment of the

magistrate, whether based on its own finding or that of a jury,

is final and nonappealable . Bomba\'s Restaurant, at 766.

Actions in the Justice of the Peace Court are subject to the

Justice of the Peace Civil Rules (J.P.Civ.R.). The Delaware

Uniform Rules of Evidence (U.R.E.), which generally follow the

Federal Rules of Evidence, govern proceedings in the courts of

the State. U.R.E. Rule 101.

Delaware Constitution: Due Course of Law Clause

The Delaware Constitution of 1897 declares at Article I,

Section 9 that the courts shall be open to all, and that \"every

man . . . shall have remedy by due course of law . . . according

to the law of the land . . . .\" Delaware courts have interpreted

this clause to have substantially the same meaning as \"due

process of law\" in the Fourteenth Amendment to the U. S.

Constitution. In re Carolyn S. S., 498 A.2d 1095 (Del. Supr.

1968). The \"due process of law\" clause in the Federal

Constitution, and the \"law of the land\" clause in the Delaware

Constitution, mean the same. Aprile v. State, 51 Del. 215, 143

A.2d 739 (Superior Court).

The Delaware Supreme Court has further stated that

Article I, Sections 7-9 of the Delaware Constitution, like the

due process clauses of the Fifth and Fourteenth Amendments,

require that, \" b efore a party can be deprived of life, liberty,

or property, it has the right to notice and a hearing in a

meaningful time and meaningful manner.\" Formosa Plastics Corp.

v\. Wilson, 504 A.2d 1083, 1089-90 (Del. Supr. 1986). The

Delaware Supreme Court has also held that due process does not

require the trier of fact to admit all evidence that a party

offers, but only that the case proceed after notice and a hearing

with proceedings adequate to safeguard the interests for which

constitutional protection is invoked. Perrine v. Pennroad

Corporation, 47 A.2d 479, 486 (Del. Supr. 1946).

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DELAWARE: DUE PROCESS DETERMINATION

IV\. Analysis of Delaware Eviction Procedures for Each of the

Regulatory Due Process Elements

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

Termination of Tenancy

The Delaware Landlord-Tenant Code requires the landlord to

give the tenant 60 days notice to terminate the lease. The

landlord must comply with 25 Del.C. 5107(c) before commencing a

summary proceeding for possession. The leasehold must be

terminated under Chapter 51 before the landlord proceeds with an

eviction under Chapter 57.

25 Del.C. 5105(a) requires that the landlord serve the

tenant with a personal notice of lease termination. The notice

can be served by leaving a copy of the notice at the dwelling

place with an adult resident, or by registered or certified mail

to the tenant. 5105(b). It does not appear that this notice

must specify the grounds for the termination.

Commencement of Action

A landlord begins an eviction proceeding by filing a

complaint with the Justice of the Peace Court. 25 Del.C.

5704(a). The court must then serve the complaint on the

defendant-tenant with a notice of the time and place of hearing.

Del.C. 5704(b). The complaint and a notice of the hearing must

be served on the tenant at least 5 days prior to the hearing, and

not more than 12 days before the hearing. Del.C. 5705(a).

Service of the notice of hearing and complaint must be made

in the same manner as personal service of a summons in an action.

25 Del.C. 5706(a). Service of the hearing notice may be made

by personal service upon the tenant, by leaving the papers at the

residence in the presence of a resident \"of suitable age and

discretion,\" by certified mail, or by delivering copies of the

papers \"to an agent authorized by appointment or by law to

receive service of process.\" Justice of the Peace Civil Rules

(J.P.Civ.R.) Rule 5(g). The summary proceeding statute also

authorizes service by leaving the notice and complaint personally

with \"a person of suitable age and discretion who resides or is

employed in the rental unit,\" if service cannot be accomplished

in the manner stated above. 25 Del.C. 5706(b). Finally, the

statute authorizes service by posting and certified or registered

mail, when no such person can be found. Del.C. 5706(c).

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DELAWARE: DUE PROCESS DETERMINATION

Under the Delaware Code, a complaint in the Justice of the

Peace Court to recover the possession of the premises must:

\(1\) 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

his 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

\(5\) State the relief sought.

25 Del.C. 5701, 5707.

In addition, where the complaint for possession of the

premises is based on a claim that the tenant has violated or

failed to observe a lawful obligation in relation to use of the

premises, the complaint must also:

\(1\) Set forth the rule, condition, or the like, allegedly

breached, together with the date and manner in which

the rule, or the like, was made known to the defendant;

\(2\) Allege with specificity the facts constituting a breach

of the rule and that notice or warning as required by

law was given to the defendant;

\(3\) Set forth the facts constituting a continued or

recurrent violation of the rule;

\(4\) Set forth the purpose serviced by the rule breached,

and that the rule promotes the convenience, safety or

welfare of other tenants of the property or preserves

the property and appurtenances thereto from abusive use

by tenants or others or seeks to distribute services

and facilities held out for common use in an equitable

manner;

\(5\) Allege that the rule, if not a part of the rental

agreement or any understanding of the landlord and

tenant at the time of the formation of the rental

agreement, does not work a substantial modification of

the defendant\'s bargain, or, if it does, that the

defendant consented knowingly in writing to the rule;

and

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DELAWARE: DUE PROCESS DETERMINATION

\(6\) If the rule breached is for the benefit of other

tenants only, allege that all the tenants for whose

benefits the rule purports to be, or, if more than 3,

any 3 of them, are in favor of the rule.

25 Del.C. 5708.

The requirements governing the content of the possessory

complaint under Delaware statutes satisfy the requirement that

the notice must give a tenant adequate notice of the grounds for

terminating the tenancy and for eviction. It appears, moreover,

that adequate notice must also be provided under the due course

of law clause of the Delaware State Constitution (Article I,

Section 9) (since that clause is deemed to provide protections

equivalent to the due process clauses of the Federal

Constitution).

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

The summary proceeding statute is silent as to

representation by counsel. However, it appears that in

Delaware, parties may be represented by counsel in any

proceeding. The due course of law clause of the Delaware State

Constitution implies that litigants are afforded the right to be

represented by counsel. Article I, Section 9.

Appearances in Justice of the Peace court may be made by

counsel. J.P.Civ.R. Rule 6(a) states that \" n o appearance by an

attorney shall be withdrawn except upon motion and order of the

court . . . .\" In addition, the Delaware Code provides that

attorney\'s fees are recoverable to a successful plaintiff

bringing an action to enforce a written instrument. 10 Del.C.

3912\.

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and examine witnesses (24 CFR 966.53(c)(3))

The Delaware Uniform Rules of Evidence (U.R.E.) generally

follow the Federal Rules of Evidence. The U.R.E. govern

proceedings in the courts of the State. U.R.E. Rule 101. The

U.R.E. are intended to promote the development of the law of

evidence in order to attain the truth in a judicial proceeding.

U.R.E. 102.

Generally, all relevant evidence is admissible unless

limited by constitutional requirements, by statute or by Delaware

6

DELAWARE: DUE PROCESS DETERMINATION

court rules. U.R.E. 402. Relevant evidence may only be excluded

if probative value of the evidence is substantially outweighed on

grounds of prejudice, confusion, or waste of time. U.R.E. 403.

The Justice of the Peace Rules of Civil Procedure provide that

all evidence must be admitted \"which is admissible.\"

J.P.Civ.R. 17(a).

The court shall determine the qualifications of a person to

be a witness, and the admissibility of evidence, based on its

determination of relevance. U.R.E. 104(a). This rule does not

limit the right of a party to present relevant evidence before

the jury. U.R.E. 104(e).

Generally, every person is deemed competent to be a witness

unless specifically disqualified due to prescribed incapacities

of the witness outlined in U.R.E. 601(a),(b). A witness may not

testify unless the witness has personal knowledge of the matter

(other than opinion testimony by expert witnesses). U.R.E. 602.

The J.P.Civ.R. provides that the testimony of witnesses must be

taken orally in open court (unless otherwise provided by

J.P.Civ.R., the U.R.E., or by statute). J.P.Civ.R. 17(a).

A defendant-tenant may refute the credibility of the

plaintiff\'s witnesses. The credibility of a witness may be

impeached by any party. U.R.E. 607. The credibility of a

witness may be attacked by evidence of reputation (except as

provided in 11 Del.C. 3508 and 3509). A party may introduce

evidence of a witness\' untruthfulness. The truthful character of

the witness may be attacked by reputation evidence. U.R.E.

608(a). A witness\' credibility may be attacked by evidence of a

prior conviction of a crime which involved dishonesty or was

punishable by death or imprisonment in excess of two years.

U.R.E. 609. A witness\' prior statement is subject to

cross-examination. U.R.E. 613. The J.P.Civ.R. also gives the

tenant-defendant the right to impeach or contradict the

plaintiff\'s case through cross-examination, including leading

questions to an unwilling or hostile witness. J.P.Civ.R. at

17(b).

A party has a right to inspect writings or recorded

statements used by the adverse party in court. U.R.E. 106.

A defendant tenant has the right to present evidence and

witnesses to refute the case presented by the PHA, subject to

reasonable judicial control as to the method of interrogating

witnesses and of presenting evidence on direct and cross-

examination. U.R.E. 611(a). The witness may be cross-examined

on any matter relevant to issues in the case, including

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DELAWARE: DUE PROCESS DETERMINATION

credibility. U.R.E. 611(b). Ordinarily, leading questions are

permitted on cross-examination of an adverse witness. U.R.E.

611(c).

The Delaware rules of evidence give a defendant-tenant a

full opportunity to defend against and refute the PHA\'s evidence,

including the right to confront and cross-examine witnesses. In

addition, the due course of law clause of the Delaware

constitution grants a party the opportunity to refute evidence

and to cross-examine witnesses. Delaware Constitution Art. I,

9\.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

( 966.53(c)(4))

The purpose of the Justice of the Peace Court under the

summary proceeding statute is to decide the possession issue and

the court\'s jurisdiction is limited to that purpose. Bomba\'s

Restaurant & Cocktail Lounge, Inc. v. Lord De La Warr Hotel, 389

A.2d 766, 770 (Del. Supreme Court 1978).1

The summary proceeding statute allows the defendant to

answer the complaint orally or in writing. \"The answer may

contain any legal or equitable defense . . . . \" 25 Del.C.

5709\.

Therefore, the applicable court rules and the Delaware

summary proceeding statute provide the tenant with the

opportunity to present in the Justice of the Peace Court any

legal or equitable defense which pertains to the eviction issue.

E. A decision on the merits ( 966.53(c)(5))

The Landlord-Tenant Code provides that all \"triable issues

of fact\" are tried by the court ( 5710), but that, where a jury

trial is demanded, the jury shall \"make a true and just report .

. . according to the evidence . . . under their hands and return

the same to the justice who shall give judgment according to the

report\" ( 5713(b)). In \"all other cases\" (i.e., where no demand

1 Claims and defenses which relate to the lease agreement,

but which are not related to the landlord\'s claim for possession,

are not within the jurisdiction of the Justice of the Peace

Court. Any other matter in controversy between the parties in

the possession suit must be settled separately in the Superior

Court. Bomba\'s Restaurant, at 770, n.3.

8

DELAWARE: DUE PROCESS DETERMINATION

has been made for a jury) \"the justice shall hear the case and

give judgment according to the right of the matter and the law of

the land\" ( 5713(d)). The court must enter a final judgment

determining the rights of the parties. 5711(a).

The phrase \"law of the land\" used in the Code is a reference

to the Delaware constitutional requirement found in Sections 7

and 9 of Article I of the 1987 Constitution. This phrase has

been construed to have the same meaning as procedural due process

under the Fourteenth Amendment to the U. S. Constitution. The

phrase \"implies action in conformity with the general law, based

upon evidence, and after a full hearing upon notice to the party

or parties affected and an opportunity to be heard.\" Aprile v.

State, 143 A.2d 739, 744 (Del.Super. 1958), aff\'d, 146 A.2d 180

(Del.Supr. 1958). The due course of law clause of the Delaware

State Constitution also affords the right to a decision on the

merits, based upon the facts and the law. Article I, Section 9.

Therefore, Delaware statutes and constitutional provisions,

as interpreted by Delaware courts, require a hearing and decision

on the merits of the case in a tenant eviction action.

V. Conclusion.

Delaware law governing a Chapter 57 summary proceeding for

possession in the Justice of the Peace Court requires that the

tenant have the opportunity for a pre-eviction hearing in court

which provides the basic elements of due process as defined in 24

CFR 966.53(c) of the HUD regulations.

By virtue of this due process determination under section

6(k) of the U.S. Housing Act of l937, a PHA in Delaware may evict

a public tenant pursuant to Justice of the Peace court decision

in an eviction proceeding for any criminal activity that

threatens the health, safety, or right to peaceful enjoyment of

the premises of other tenants or employees of the PHA or any

drug-related criminal activity on or near the premises, and is

not required to first afford the tenant the opportunity for an

administrative hearing on the eviction.

9