Abandonment by Tenant in Delaware

What is Abandonment?

“The principle is well established that the holder of a right of way or rights subject to limitation may be lost by abandonment.” (See St. ex Rel. Dept. of Transp. v. Penn Cent (1982) 445 A.2d 939, 948; 95 A.L.R.2d 468 (1964).)

“Abandonment depends upon a showing of:

1. an intent to abandon and
2. some act or omission directed toward carrying out the intent to abandon.”

(See id.)

“In Delaware, an easement may be lost by abandonment when there is intent to abandon together with manifestation of such intent through acts. Accordingly, mere nonuse alone is insufficient to find that an easement has been abandoned; rather, [t]here must be unequivocal acts affirming the purpose to abandon and thereby give up ownership.” (See Green v. Templin, Civil Action No. 5202-VCP, at *34 (Del. Ch. July 2, 2010); Acierno v. Goldstein, 2005 WL 3111993, at *9 (Del. Ch. Nov. 16, 2005); Smith v. Smith, 1990 WL 54919, at *4 (Del. Ch. Apr. 17, 1990).)

“Since intent is an important element in determining whether abandonment has occurred, this is a subject which rarely lends itself to disposition on summary judgment.” (See id; Continental Oil Co. v. Petroleum, Inc., Del.Supr. (1969) 251 A.2d 824; George v. Frank A. Robino, Inc. Del.Supr., 334 A.2d 223 (1975). Cf. 95 A.L.R.2d 468-470 (1964).)

Determining Whether a Non-Conforming use has been Abandoned

“[T]he initial burden of proof is on the property owner to establish a non-conforming use.” (See W&C Catts Family Ltd. v. Town of Dewey Beach & the Bd. of Adjustment of Dewey Beach, Del., Mun. Corp., C.A. No. S18A-05-001 RFS, at *7 (Del. Super. Ct. Nov. 30, 2018); Dover Products v. Turner, 1978 WL 22004, at *3 (Del. Ch. 1978).)

“The question of whether a non-conforming use has been abandoned is determined by looking at the facts and circumstances of the particular case.” (See Re: Morgan v. Callaway, C.A. No. 02A-02-002, at *1 (Del. Super. Ct. Jan. 29, 2003)l Auditorium, Inc. v. Bd. of Adjustment of Mayor Council of Wilmington (1952) 91 A.2d 528, 534.)

“Generally, abandonment requires more than a mere temporary suspension of the use and requires the concurrence of an intention on the part of the owner to abandon or relinquish the use with an overt act, or failure to act, showing the consummation of that intention.” (See id.)

“Under the provisions of practically all Building Zone Ordinances the abandonment of an existing non-conforming use prevents its re-establishment after such abandonment. What constitutes an abandonment of a non-conforming use depends upon the circumstances of each case and the terms of the Zoning Ordinance.” (See Auditorium, Inc. v. Bd. of Adjustment (1952) 47 Del. 373, 385; 58 Am. Jur. Zoning, Sec. 153; Landay v. MacWilliams, 173 Md. 460, 196 A. 293, 114 A.L.R. 984.)

“[W]here a property owner terminates a nonconforming use for a period in excess of the lapse time specified in the zoning ordinance, abandonment is presumed.” (See Hamm v. City of Wilmington Zoning, C.A. No. 09A-04-009 JEB, at *10 (Del. Super. Ct. Feb. 17, 2010); Wilm. C. § 48-38(b)(8); Zitelli v. Zoning Hearing Bd. of Borough of Munhall, 850 A.2d 769, 771 (Pa. Cmwlth. 2004) [finding that a zoning ordinance establishes a presumption of intent to abandon a nonconforming use where the ordinance incorporates a discontinuance provision that designates a lapse time].)

Common Law Abandonment

“Under the common law, abandonment requires a lessor to establish the lessee's intent to abandon the property and an act by the lessee evidencing this intent.” (See Tigani v. C.I.P. Assocs. (2020) 228 A.3d 409; Bank of Delaware v. Claymont Fire Co. No. 1 (1987) 528 A.2d 1196, 1198.)

Abandonment of a Lease

“In order to constitute an abandonment of a lease, which on acceptance by the landlord will constitute a surrender by operation of law, there must be an intent to abandon and conduct by which the intention is carried into effect.” (See Colt Lanes of Dover, v. Brunswick Corp. (1971) 281 A.2d 596, 600; l 51C C.J.S. Landlord and Tenant § 125(2), p. 399.)

“The failure of a tenant with knowledge to object to a second lease by a landlord may, along with other circumstances, constitute an abandonment of the tenant's lease.” (See id; Edwards v. Blissard (1969) 440 S.W.2d 427.)

Burden of Proof for Showing Abandonment of Property

“Abandonment is a question of intention and may be proved by a cessation of use coupled with circumstances clearly showing an intention to abandon the right.” (See Cartanza v. Lebeau, Civil Action No. 1480-K, at *1 (Del. Ch. Mar. 28, 2006); Strahin v. Lantz, 456 S.E.2d 12, 15 (W.Va. 1995) [quoting 6B Michie's Jurisprudence, Easements § 18 at 166-67 (1985)].)

“A defendant has the burden of proving abandonment of an easement by prescription by clear and convincing evidence.” (See id.)

“Mere nonuse for less than the prescriptive period will not raise a presumption of abandonment. Rather, whether particular actions constitute proof of intent to abandon an easement by prescription depends on the unique facts of each case.” (See id; Bringhurst v. O'Donnell (1924) 124 A. 795, 798.)