Article VI — TENANT MOVE OUT AGREEMENT ORDINANCE

Editor's note— Ord. No. 13483, § 1, April 17, 2018, numbered this as Article VII but was included as Article VI at the discretion of the editor to prevent duplication of article numbers.

A.

This Article shall be known as the "Tenant Move Out Agreement Ordinance."

B.

The majority of Oakland's residents are renters, many of whom live in rent-controlled units or units covered by Oakland's Just Cause for Eviction Ordinance.

C.

The City of Oakland is dedicated to pursuing policies that protect its most vulnerable residents and promote housing security for inhabitants of all income levels.

D.

Oakland's affordable housing crisis has exacerbated bargaining power disparities between property owners and tenants, contributing to a dynamic whereby tenants may enter into move out agreements without full knowledge or understanding of their legal rights.

E.

The City Council finds that reasonable regulation of aspects of the property owner-tenant relationship is necessary to foster constructive communication, maintain an adequate supply of a variety of rental housing options, and protect the health, safety, and general welfare of the public.

F.

The main purposes of this Article are to improve the fairness and transparency of move out negotiations and move out agreements, to ensure that tenants who enter into move out negotiations or move out agreements are aware of their rights, to prevent property owners from contracting around the legal rights and remedies available to tenants under existing law, and to equip the city with useful tools for monitoring the impacts of move out agreements on Oakland's residents and housing market.

(Ord. No. 13483, § 1, 4-17-2018)

"Catastrophically Ill" has the same meaning as in O.M.C. 8.22.360 A.9.e.ii.

"City Administrator" means the Oakland City Administrator or their designee.

"City Attorney" means the Oakland City Attorney or their designee.

"Disabled" has the same meaning as in O.M.C. 8.22.360 A.9.e.i.b.

"Elderly" means sixty (60) years of age or older.

"Just Cause for Eviction Ordinance" means the ordinance adopted by the voters on November 5, 2002 (also known as Measure EE) and codified at O.M.C. 8.22.300 (O.M.C. Chapter 8.22, Article II).

"Move Out Agreement" means a written agreement wherein the owner pays the tenant money or other consideration to vacate a rental unit. An agreement to settle an unlawful detainer action filed in Alameda County Superior Court shall not be a "move out agreement" for purposes of this Article.

"Move Out Negotiations" means any discussion or bargaining, whether oral or written, between a tenant and an owner regarding the possibility of entering into a move out agreement. A move out negotiation begins upon the owner's initiation of such discussion or bargaining and ends at the earliest of the following events: when a move out agreement is executed, when the tenant vacates their unit, when the tenant expresses to the owner that the tenant no longer wishes to engage in move out negotiations, or when the owner provides written notice to the tenant that the owner no longer wishes to engage in move out negotiations. A counteroffer by the tenant does not end a move out negotiation.

"Owner" has the same meaning as "landlord" in O.M.C. 8.22.340.

"Rent Adjustment Program" has the same meaning as in O.M.C. 8.22.020.

"Rent Board" has the same meaning as "board" in O.M.C. 8.22.020.

"Rental Unit" as used in this Article includes a "rental unit" as defined in O.M.C. 8.22.340 or a "covered unit" as defined in O.M.C. 8.22.020.

"Tenant" has the same meaning as in O.M.C. 8.22.340.

"Tenant Protection Ordinance" means the ordinance codified at O.M.C. 8.22.600 (O.M.C. Chapter 8.22, Article V).

(Ord. No. 13483, § 1, 4-17-2018)

This Article shall apply to all rental units, except rental units that are owned or operated by a public entity (e.g., the City of Oakland, the Redevelopment Agency of the City of Oakland, and the Oakland Housing Authority).

(Ord. No. 13483, § 1, 4-17-2018)

A.

Prior to commencing move out negotiations for a rental unit, an owner shall provide each tenant in that rental unit with a written disclosure on a form prescribed by the city, which shall include, but is not limited to, the following:

A statement that the tenant has a right to refuse to enter into a move out agreement or engage in move out negotiations;

A statement that the owner may not retaliate against the tenant for refusing to enter into a move out agreement or engage in move out negotiations;

A statement that the tenant may choose to consult with an attorney before entering into a move out agreement or engaging in move out negotiations;

A statement that offering payments to a tenant to vacate more than once in six (6) months after the tenant has notified the owner in writing that the tenant refuses to enter into a move out agreement or engage in move out negotiations constitutes harassment under the Tenant Protection Ordinance (O.M.C. 8.22.600, et seq.);

A statement that the tenant may rescind the move out agreement for up to twenty-five (25) days after it is fully executed by all parties, unless the parties agree in writing to a shorter rescission period of not less than fifteen (15) days, provided that the tenant has not moved out, and the decision to rescind is unanimous among the tenants who are parties to the move out agreement;

General eligibility for relocation payments and the amounts tenants may be entitled to;

A statement that the tenant may find information regarding tenants' rights and contact information for tenants' assistance organizations at the city's Rent Adjustment Program office or on the rent adjustment program website, as well information regarding the city's other relevant online resources;

A description of when tenants have an option or right to return to their rental unit under state or local law and an explanation that waiver of these rights, if applicable, may make a move out agreement more valuable;

A statement that market rate rents in the area may be significantly higher than the tenant's current rent and that the tenant may wish to check rents for comparable rental units before entering into a move out agreement, particularly a move out agreement that waives any options or rights to return to the rental unit that the tenant may have;

A statement that payments pursuant to a move out agreement may be subject to federal and/or state taxation and that the tenant should consult taxing authorities or a tax professional for more information or advice on taxability;

A statement that move out agreements and documents related to move out agreements that are submitted to the city may be public, but that the city may redact personal information to the extent possible consistent with Oakland, state, and federal public records laws or policies. Parties to a potential move out agreement should be advised that information a party believes to be private may be subject to public disclosure;

The names of all people authorized to conduct move out negotiations and enter into move out agreements on the owner's behalf;

Any other information required by the Rent Adjustment Program consistent with the purposes and provisions of this Section;

The following statements and question in bold letters with a space for the tenant to affix their initials next to each possible answer:

"Owners who fail to comply with the requirements of Oakland's Tenant Move Out Agreement Ordinance (O.M.C. 8.22.700, et seq.) may be subject to more significant penalties if the tenant is elderly, disabled, or catastrophically ill. As defined in the Ordinance, elderly tenants are sixty (60) years of age or older. Tenants are disabled if they are disabled under Section 12926 of the California Government Code. Tenants are catastrophically ill if they are both disabled under Section 12926 of the California Government Code and suffering from a life-threatening illness, as certified by their primary care physician. Do you believe that you are elderly, disabled, or catastrophically ill as those terms are defined above? Yes ___ No ___ I don't know ___ I prefer not to say ___."

A space for the owner to sign and write the date on which the owner provided the tenant with the disclosure form; and

A space for each tenant to sign and write the date on which they received the disclosure form.

B.

The owner shall provide the tenant with a fully executed copy of the disclosure form, or a copy of the disclosure form executed by the owner, within three (3) days of execution.

C.

The owner shall retain at least one (1) copy of each executed disclosure form, or the disclosure form executed by the owner along with a proof of service to the tenant, for five (5) years after the date on which the tenant executes the form or the owner serves the form. the owner shall maintain a record of the date(s) on which the owner provided the disclosure form to each tenant.

D.

Prior to commencing move out negotiations for a rental unit, the owner shall provide the following information to the Rent Adjustment Program, on a form prescribed by the Rent Adjustment Program and signed by the Owner under penalty of perjury:

The owner's name, business address, business email address, business telephone number, and authorized agent, if applicable;

The address of the rental unit that may be the subject of move out negotiations;

A list of all dates on which the owner initiated other move out negotiations with any current or prior tenants at the property and the rental units occupied by each tenant, completed to the best of the owner's recollection and knowledge; and

A statement that the owner provided each tenant with the disclosure form required under this Section.

E.

The city may make the information included on this form publically available, except that the city may redact information from the forms, including personal information, to the extent such redaction is consistent with Oakland, state, or federal laws or policy addressing disclosure of documents or information within the city's possession or control. The city does not warrant that information any party to the move out negotiation or agreement believes to be private will not be released.

F.

The owner and the tenant may agree on the means of communicating and the service of notices pursuant to this Chapter.

(Ord. No. 13483, § 1, 4-17-2018)

A.

Every move out agreement shall be in writing.

If the tenant is proficient in Spanish or Chinese and is not proficient in English, the owner shall make a copy of the move out agreement available in the tenant's language of proficiency. If the owner negotiated the terms of the rental agreement in a non-English language, the owner shall make a copy of the move out agreement available in that language. The owner shall provide the tenant with the non-English copy of the agreement at the same time that the move out agreement is presented to the tenant.

Immediately after the parties execute the move out agreement, the owner shall give each tenant a copy of the fully executed agreement to retain for the tenant's records. The owner will provide and retain a proof of service of the executed move out agreement.

B.

Every move out agreement shall include the following statements in a size equal to or at least fourteen (14) point type in close proximity to the space reserved for the signature of the tenant(s):

"You, the tenant, may cancel this agreement in writing at any time up to and including the twenty-fifth (25th) day after all parties have signed this agreement, unless you, any other tenants who signed the agreement, and your landlord agree in writing to a shorter rescission period of not less than fifteen (15) days. However, rescission is not effective if you have moved out. To cancel this agreement, send notification of your intent to rescind to the Owner by any means through which you have agreed to communicate. If you have not agreed to a particular mode of communication, either personally serve the Owner with the notice or send the notice by registered and first class mail to the last known address of the property owner. If the document is returned undelivered, use reasonable means to notify the Owner of the rescission."

"You have a right not to enter into a Move Out Agreement."

"If you are entitled to relocation payments under federal, state, or local law, a Move Out Agreement for less than the amount of the relocation payments to which you are entitled violates Oakland's Tenant Move Out Agreement Ordinance (O.M.C. 8.22.700 et seq.) and is voidable by you."

"You may choose to consult with an attorney and/or a tenants' rights organization before signing this agreement."

"Owners who fail to comply with the requirements of Oakland's Tenant Move Out Agreement Ordinance (O.M.C. 8.22.700, et seq.) may be subject to more significant penalties if the tenant is elderly, disabled, or catastrophically ill. As defined in the Ordinance, elderly tenants are sixty (60) years of age or older. Tenants are disabled if they are disabled under Section 12926 of the California Government Code. Tenants are catastrophically ill if they are both disabled under Section 12926 of the California Government Code and suffering from a life-threatening illness, as certified by their primary care physician. Do you believe that you are elderly, disabled, or catastrophically ill as those terms are defined above? Yes ___ No ___ I don't know ___ I prefer not to say ___."

"Owners who recover possession of a rental unit pursuant to Sections 8.22.360 A.8. (owner move-back), A.9. (owner or relative occupancy), A.10. (repairs), and A.11. (taking the property off the rental market) of the Oakland Municipal Code must comply with certain requirements. In the 180 days preceding execution of this agreement, did you (the owner), or any of your agents or representatives either a) issue a notice terminating tenancy to any of the tenants who are parties to this agreement or b) otherwise communicate orally or in writing to any of those tenants that you intended to recover possession of the unit under any of these O.M.C. Sections? Yes ___ No ___. If so, which section? ___."

Immediately after Items 1-4, there shall be a line for each tenant to affix their initials. the question listed as item 5 shall appear in the move out agreement once for each tenant who is a party to the move out agreement. A space for the tenant to affix their initials shall be provided next to the question. The question listed as item 6 shall be answered by the owner under penalty of perjury.

C.

Move out agreements must be for greater than the amount of the relocation payments to which the tenant may be entitled under Oakland, state, or federal law. Move out agreements for less than the amount to which the tenant is entitled in relocation payments are in violation of this Article and can be regarded by the tenant as non-compliant move out agreements.

(Ord. No. 13483, § 1, 4-17-2018)

A.

Rescission by Right. A tenant shall have the right to rescind a move out agreement for up to twenty-five (25) days after its execution by all parties, unless the parties agree in writing to a shorter rescission period of not less than fifteen (15) days, subject to the requirements in subsection C. and D. below. In order to rescind a move out agreement under this Section, the tenant(s) must notify the owner that the tenant(s) intend(s) to rescind the move out agreement. If the tenant(s) choose(s) to place the statement in the mail, it must be postmarked or otherwise served by the rescission deadline to be effective.

B.

Rescission of Non-Compliant Move Out Agreement.

A move out agreement that does not satisfy all of the requirements of this Article, including containing any required signatures or initials by the parties, may be rescinded by the Tenant within six (6) months of its execution, subject to the requirements of subsection C. and D. below. In any communication to the owner rescinding a non-compliant move out agreement, the tenant must specifically set out the reasons why the tenant believes the move out agreement is non-compliant.

Within five (5) days of receiving a rescission notice, the owner must either offer the unit back to the tenant or respond with reasons why the move out agreement may not be rescinded.

A tenant who rescinds a move out agreement because it is non-compliant and is unable to move back into the unit may seek other remedies against the owner.

C.

In order to rescind a move out agreement, the following conditions must be met:

The decision to rescind must be unanimous by all tenants who are parties to the move out agreement;

The tenant(s) must sign a document indicating their intent to rescind the move out agreement and the basis for the rescission, including any non-compliance with this Article by the owner;

All tenants who are parties to the move out agreement must also agree to refund all monies paid to them under the move out agreement; and

The notice of intent to rescind may be sent by any means through which the parties have agreed to communicate. If the parties have not agreed to a particular mode of communication, the tenant(s) must either personally serve the property owner with the notice or send the notice by registered and first class mail to the last known address of the owner. If the document is returned undelivered, the Tenant(s) must use reasonable means to notify the owner of the rescission.

D.

A rescission is not effective if the tenant has moved out of the unit.

(Ord. No. 13483, § 1, 4-17-2018)

The owner shall file a copy of the move out agreement with the rent adjustment program no sooner than the twenty-fifth (25 th ) and no later than the forty-fifth (45 th ) day after service of the executed move out agreement. This filing requirement does not apply to move out agreements rescinded by the tenant pursuant to Section 8.22.750.

(Ord. No. 13483, § 1, 4-17-2018)

A.

Administrative Remedies.

Administrative Citation. Any person violating any provision or failing to comply with any requirements of this Tenant Move Out Agreement Ordinance may be assessed an administrative citation pursuant to O.M.C. Chapter 1.12 for the first offense.

Administrative Civil Penalties. Any person violating any provision or failing to comply with any requirements of this Tenant Move Out Agreement Ordinance multiple times may be assessed a civil penalty for each violation pursuant to O.M.C. Chapter 1.08.

B.

Civil Remedies.

A tenant who believes that an owner has violated provisions of this Tenant Move Out Agreement Ordinance may file an action against the owner for equitable relief (e.g., injunctions and restitution), actual damages or minimum damages, and recovery of costs and reasonable attorney's fees. The greater of actual damages or minimum damages of five hundred dollars ($500.00) per violation shall be awarded for an owner's failure to comply with the obligations established under this Article. The greater of treble actual damages or minimum damages of one thousand dollars ($1,000.00) per violation shall be awarded for an owner's willful failure to comply with the obligations established under this Article.

The City Attorney may file an action against an owner that the City Attorney believes has violated provisions of this Article. Such an action may include requests for equitable relief (e.g., injunctions and restitution), assessment and recovery of administrative citations and civil penalties, and recovery of costs and reasonable attorney's fees. The City Attorney has sole discretion to determine whether to bring such an action.

An owner who violates subsection 8.22.730 A.—C., 8.22.740, or 8.22.780 D. of this Tenant Move Out Agreement Ordinance with respect to elderly or disabled tenants is liable in a court action for each and every such offense for monetary damages of no less than three (3) times the actual damages suffered by their aggrieved tenant(s) (including damages for mental or emotional distress), or for minimum damages of one thousand dollars ($1,000.00) per offense, whichever is greater. Any owner who willfully violates subsection 8.22.730 A.—C., 8.22.740, or 8.22.780 D. of this Tenant Move Out Agreement Ordinance with respect to elderly or disabled tenants is liable in a court action for each and every such offense for money damages of no less than three (3) times the actual damages suffered by their aggrieved tenant(s) (including damages for mental or emotional distress), or for minimum damages of one thousand five hundred dollars ($1,500.00) per offense, whichever is greater.

An owner who violates subsection 8.22.730 A.—C., 8.22.740, or 8.22.780 D. of this Tenant Move Out Agreement Ordinance with respect to catastrophically ill tenants is liable in a court action for each and every such offense for monetary damages of no less than three (3) times the actual damages suffered by their aggrieved tenant(s) (including damages for mental or emotional distress), or for minimum damages of one thousand five hundred dollars ($1,500.00) per offense, whichever is greater. Any owner who willfully violates subsection 8.22.730 A.—C., 8.22.740, or 8.22.780 D. of this Tenant Move Out Agreement Ordinance with respect to catastrophically ill tenants is liable in a court action for each and every such offense for money damages of no less than three (3) times the actual damages suffered by their aggrieved tenant(s) (including damages for mental or emotional distress), or for minimum damages of two thousand dollars ($2,000.00) per offense, whichever is greater.

C.

Nonexclusive Remedies and Penalties. The remedies provided in this Article are not exclusive, and nothing in this Article shall preclude a party from seeking any other remedies, penalties, or procedures provided by law.

D.

An owner who believes a tenant may not be eligible for enhanced penalties due to age, disability, or catastrophic illness may utilize the procedure set out in regulations for contesting similar status under the Just Cause for Eviction Ordinance (O.M.C. 8.22.300, et seq.). This subsection does not preclude an owner from contesting eligibility in a later administrative or court proceeding.

(Ord. No. 13483, § 1, 4-17-2018)

A.

Non-Waivability. The provisions of this Tenant Move Out Agreement Ordinance may not be waived. Any term of any move out agreement, lease, contract, or other agreement which purports to waive or limit a

tenant's substantive or procedural rights under this Tenant Move Out Agreement Ordinance is contrary to public policy, unenforceable, and void.

B.

Waiver of Other Tenant Rights. Where a tenant has a non-waivable right under other Oakland, state, or federal laws, a tenant cannot waive such a right in a move out agreement, including any rights or options to return to the rental unit.

C.

Service of Notices. Notices under this Chapter must be served by registered and first class mail or by personal service, unless the owner and tenant agree on another form of service, such as email or facsimile. Notices served by mail are deemed received five (5) days after mailing. All other forms of service are deemed received on the date of receipt unless the owner and tenant agree otherwise. If a notice is served by more than one (1) method, the notice is deemed received on the earliest receipt date.

D.

Retaliation Prohibited. Retaliation against a tenant because of the Tenant's exercise of rights under the Tenant Move Out Agreement Ordinance is prohibited and constitutes a violation of this Article. Retaliation claims may only be brought in court and may not be addressed administratively.

E.

Rules and Regulations. The rent board is authorized to create and amend rules and regulations consistent with this Article.

F.

Forms and Informational Materials. The City Administrator is authorized to develop forms, informational, and instructional materials to assist owners and tenants in complying with this Chapter.

(Ord. No. 13483, § 1, 4-17-2018)