TITLE 25

Property

Commercial Leases

CHAPTER 63. DISTRESS FOR RENT


(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.

25 Del. C. 1953, § 6301; 58 Del. Laws, c. 472, § 1.;

(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.

25 Del. C. 1953, § 6302; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 513, § 16.;

(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.

25 Del. C. 1953, § 6303; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 513, § 17.;

(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 of this title, 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 the plaintiff may take the goods wherever found and recover damages for carrying away or injuring them.

25 Del. C. 1953, § 6304; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 186, § 1.;

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 that tenant's 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.

25 Del. C. 1953, § 6305; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 186, § 1.;

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 the constable's or sheriff's action to the Court including the date, time and manner of the forcible entry.

25 Del. C. 1953, § 6306; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 186, § 1.;

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.

25 Del. C. 1953, § 6307; 58 Del. Laws, c. 472, § 1.;

(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.

25 Del. C. 1953, § 6308; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 513, § 18.;

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.

25 Del. C. 1953, § 6309; 58 Del. Laws, c. 472, § 1.;

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 that constable's or sheriff's or other officer's actions in carrying out said order except for any damage incurred as a result of that constable's or sheriff's or other officer's gross negligence or wilful misconduct.

25 Del. C. 1953, § 6310; 58 Del. Laws, c. 472, § 1; 70 Del. Laws, c. 186, § 1.;