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Advocates argue Delaware court processes to blame for state's high eviction rates

Sarah Mueller
Delaware Public Media
Furniture piled up outside a rental home in Wilmington.

Being evicted can mean homelessness, as well as losing access to food assistance and employment.

Legal aid groups say the court process makes it too easy for landlords to evict tenants they consider undesirable. But a new state pilot program aims to provide more people facing eviction with lawyers.

Iris Oneal lives in downtown Wilmington, just blocks away from high-rise offices and luxury apartment buildings. The 62-year-old finally has a place to live again after experiencing homelessness following an eviction last year.

She said she was evicted from a rental in Wilmington because she reported the landlord to county business inspectors for not maintaining the property.

“Downstairs in that house in the basement was a whole bunch of garbage and we kept having mice," she said. "We were having bugs we’ve never seen before and I’m from West Virginia, so if I ain’t seen it you know it’s something strange.”

Delaware and its three counties all have eviction rates higher than the national average. Eviction Lab found Delaware’s 2016 eviction rate was 5.1 percent - while national rate that year was around 3 percent.

Eviction Lab is team of researchers, students and website architects at Princeton University put together by sociologist Matthew Desmond, the author of “Evicted: Poverty and Profit in the American City.” The lab created the first ever nationwide eviction data sets on evictions for the years 2000 to 2016.

Eviction Lab’s Adam Porton said the data is more reliable in some states than others.

“All the evictions are real, but there’s not perfect coverage everywhere," he said. "As it happens, in Delaware, it has really good coverage.”

Eviction rate by county in Delaware (click to enlarge)

Kent County had the highest 2016 eviction rate, about 6 percent. New Castle County’s rate was about 5 percent and Sussex County was 4.25 percent.

Porton said they show higher rates of evictions than the state’s Justice of Peace Court because there’s a difference in how the two define an eviction. Eviction Lab counts an eviction when the JP judge rules a tenant can be evicted. But the JP Court only counts an eviction if a constable or sheriff has to go out, physically remove someone and change the locks.

“That group is a smaller group because not every legally sanctioned eviction ends with a sheriff showing up at the door," he said. "Sometimes they just leave on their own after the court order and then in some cases they may even work it out with their landlord, but that legally sanctioned eviction remains on their record.”

Dan Atkins with the Community Legal Aid Society (CLASI) said a number of factors can contribute to people getting evicted. For one, Delaware doesn’t have enough low-income public and subsidized housing. Atkins says there’s also a lack of affordable housing where a tenant only needs spend about a third of their income on rent.

“If you look at 100 households of very low-income families, there are 55 affordable rental units available for every one of those 100 households that are very low income,” he said.

Atkins also said there’s a large percentage of housing units that are in poor condition, particularly in Wilmington. Because of the affordable housing shortage across the state, landlords aren’t motivated to spend the money to make repairs.

“Conditions are horrible and you as a tenant are complaining about the conditions. The landlord is going to say ‘You don’t like the conditions? Go. I have someone else waiting to take that apartment,'" he said. "So there’s no incentive on landlords to increase the habitability of their unit.”

Iris, her daughter and grandchildren are out of the shelter and living in rental house because after a five-year wait, Iris got a Section 8 voucher. She said since moving back to Wilmington from Texas in 2014, she’s struggled to maintain housing, living in shelters before and after the eviction.

Credit Sarah Mueller
The street Iris and her family live on. They declined to be photographed for the story.

While Delaware law prohibits a landlord from retaliating against a tenant exercising a legal right or making a complaint to a government agency, Iris alleges that’s what happened. But she also admits withholding rent because the landlord failed to make requested repairs.

“My thing is, there’s a lot of landlords who don’t want to fix stuff," she said. "But they want their rent, you know. And if you stop paying the rent, they got the right to evict you, but we have no rights to make them take care of what they got to take care of.”

Iris said she became homeless because judgments on her record prevented her from securing another rental. Iris said she has four evictions, dating back 12 years. But she declined to talk about those, saying past substance abuse and mental health problems played a role. She said she owes about $3,000 in judgments, which she can’t afford to pay.

Porton said features of a state’s court system often shape the rate of eviction. He said they’ve seen this nationally.

CLASI attorneys Dan Atkins and Meghann Karasic say many Delaware tenants don’t understand their legal rights and obligations under state law. But they also take aim at the state’s court process, which they say can be unfair to tenants facing eviction.

Many tenants facing evictions don’t have lawyers. Karasic says because the court process in Delaware moves so fast, someone may be evicted in just six weeks’ time.

“They have an appeal right, but it’s in the same court," she said. "And you can still lose the housing while you’re waiting for the appeal.”

Before landlords can move to evict someone, they have to send a letter demanding a tenant pay their rent and give them five days to pay it. Then they can file with the Justice of Peace courts to remove the person from the unit.

Atkins said Delaware has a low cost of entry cost for filing eviction cases. Landlords aren’t required in Delaware to be represented by an attorney. And the fee to file is low, just $45 per case. Karasic also notes that if the tenant pays the rent after the 5-day grace period, the landlord can still ask the court to evict them.

Karasic said Delaware has no minimum rental threshold for a person to get evicted. A person owing $5 or $500 has the same chance of being evicted under Delaware law. “The pushback to that argument is that you know nobody, no rational actor would file, pay the $45 dollar filing fee if they weren’t owed at least $45," she said. "But they do and we’ve seen it.”

CLASI attorneys also complain that JP judges aren’t required to graduate law school to handle these cases.  But they also say it's unreasonable to expect all JP judges be law-trained. But they want appeals to go a higher court, not back to the JP court. A three-judge panel in JP court currently hears appeals.

An Administrative Law task force set up in the fall of 2017 is working on draft legislation that includes changes to Delaware’s landlord tenant code. Its ranks include some of the top lawyers in the state. A task force member said some changes being considered are ones CLASI attorneys favor. But lawyers and lobbyists for landlords and property managers are pushing back - and those changes could be dropped or spun off into separate legislation. The earliest a bill would be introduced is January.

Landlords say the court process takes too long, tenants leave units a mess which can take a lot of money to fix and no one is really evicted for small amounts of rent owed. But despite multiple attempts over a three-week period, representatives from industry groups, attorneys or lobbyists failed to respond to requests for comment or declined to speak on the record.

Porton said evictions have consequences on a family’s financial, physical and mental wellbeing.

“You're more likely to face job loss, face possible temporary or long-term homelessness, your kids may have to move schools, and their performance in school may suffer over time," he said. "And overall, there’s some research that eviction is detrimental to long-term health.”

Homelessness can be a traumatic experience for children. Such adverse childhood experiences can lead to risky health behaviors, chronic health conditions, low life potential and early death.


Iris says after she and her family were evicted, they struggled to track down her daughter's medication, which she gets by mail. Her daughter has Gaucher Disease, which means she’s missing an enzyme that breaks down fat in cells.

“Due to the eviction, we had the mail go to the shelter, the shelter was throwing the mail away," she said. "All of this because you know because of the eviction from 12/17. We’ve been through hell. You know, we’re just now starting to get things back together.”

In January of this year, CLASI received $225,000 from the Delaware State Housing Authority and the Federal Home Loan Bank of Pittsburgh to use to help reduce homelessness. It was part of $1.2 million handed out to 10 groups across the state. CLASI, along with the Legal Services Corporation and Delaware Volunteer Legal Services is using the money to provide more attorneys to represent people facing eviction.

Atkins said they’ll be evaluating whether people who get legal representation are more likely to keep their housing.

Iris had a legal aid lawyer represent her in her eviction. She said while she lost her housing, they were able to stay in the rental for longer without paying rent and left owing just one month rent. She credits getting the Section 8 voucher as being the most helpful. Her family now lives in a four bedroom house with three car garage. Her Social Security payments cover her rent.

“The main thing is that the two-year-old can go out there and ride his bike up and down and he don’t have to go out in the street," she said. "That made me be here. I just want to be comfortable.”

An eviction can happen to anyone. DeBorah Gilbert White has a PhD. She didn’t have a substance abuse problem or a mental health issue. She didn’t have small children. In 2011, she lived in New Castle County and because she was under-employed - fell behind on her rent. She was evicted and for a time, homeless. Gilbert White now lives in D.C. and is an advocate for the homeless.

Iris said if she wouldn’t have gotten the Section 8 voucher, she would still be homeless. More than 30,000 people are waiting lists in Delaware for public housing and Section 8 vouchers.

Editor's note: This story has been updated to clarify CLASI's position on JP judges being law-trained and their advocacy for appeals going to a higher court.

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