What Is a Voluntary Move Out Agreement?
A Voluntary Move Out Agreement (VMO) is a voluntary written agreement between a landlord and a tenant that allows the tenant to move out of the rental unit, usually in lieu of an eviction lawsuit. VMOs are used for numerous reasons: to accommodate tenants needing to relocate for a new job, military transfer, to care for sick relatives or for caregivers to move to assisted living facilities, among others. Often, these VMOs happen in the context of financial issues and can be the only realistic alternative to evicting a financially strapped tenant when faced with a foreclosing bank or bank attempting to evict an owner/tenant.
A VMO can be a very power tool. This type of agreement is not as tightly regulated as some other options available under California law and has the potential to be used in a number of different situations to help both landlords and tenants.
A Landlord might use it "in lieu of an unlawful detainer" (i.e. , eviction lawsuit), although use of a VMO is not limited to this situation. Tenants often appreciate being given an opportunity to give notice and move out instead of receiving an eviction lawsuit. An eviction lawsuit can be much more damaging to their credit and future ability to rent an apartment (even though they might prevail in an eviction lawsuit). Tenants can often avoid collection actions and/or garnishment of wages in the way that could be possible with an unlawful detainer.
VMO’s can be an alternative to owners being forced out by a foreclosure or forced to sell their homes.
Essentials of the Agreement Form
The following are critical elements included in an agreement form that should be present in a voluntary move out agreement: Tenant name(s), address, contact information, date of move out (date must be after legal termination of tenancy), rent amount, repairs, and fees/credits. This form is most useful for residents in month-to-month rental agreements and indicates acceptance by tenants of any repair costs and/or rent credits to be applied through the date of move out. Simply stated, it is best practice to specifically list the repair items and costs, all move out fee amounts, and if applicable, rent credits. Listing these items gives the tenant the opportunity to dispute specific items. Use of a mandatory entry form such as this may protect you from liability under Fair Housing Laws, since it provides a uniform means of allowing residents to voluntarily vacate the premises. In addition, the move out fee amount or amount to be paid for repairs may then be scheduled in the rental agreement or established by park rules. Indeed the purpose of the voluntary move out agreement form is to give residents and tenants the motivation to move out under a set of required terms that benefits the community. The value of participating in this arrangement may then be to allow the resident to take certain items with them as they leave, or to encourage them to pay an amount that is less than what would be assessed if paid on a voluntary move out basis.
The Legal Framework in CA
California state law encourages landlords and tenants to resolve their disputes through mutual agreement. The concept of a "voluntary move out agreement" is an option that may help landlords avoid costly court proceedings, and it is a solution that tenants may see as an opportunity to secure immediate housing and other concessions in return for vacating the rental property. However, tenants should be aware that voluntary move out agreements do not always comply with legal requirements that protect tenant rights. For example, under California state law, if a tenant accepts rent for a time period after the lease has been terminated, a tenant is protected from being evicted for the next 30 days, unless the tenant gives the landlord regular advance notice under California Code of Civil Procedure Section 1946. A voluntary move out agreement may also include unlawful waivers of tenant rights. For example, under California Civil Code Section 1953, a landlord may not include in a lease agreement a provision that "purports to waive or to forego the benefits conferred on a tenant by this chapter, Section 1927, or Section 1942." Therefore, any provision in a voluntary move out agreement that requires a tenant to waive his or her rights under laws intended to protect tenants – such as his or her right to a refund of the security deposit, his or her right to a habitable residence, or his or her right to privacy – will likely be unenforceable. To avoid disputes about the enforceability of any waiver, a tenant should not offer to waive his or her rights under relevant tenant protection laws in exchange for a concession in a voluntary move out agreement. As such, both landlords and tenants pursuing voluntary move out agreements are advised to consider the legal context of the agreement in California and seek the assistance of an attorney or housing counselor.
Procedural Steps for Drafting a Voluntary Move Out Agreement
The drafting of a voluntary move out agreement is merely the last step before an eviction case is dismissed. While elements of the final draft may be disputed over with the tenant, the important details will have already been worked out. The following steps will help both landlord and tenant towards a successful final agreement.
- Confirm all terms are met- Everything agreed to between the landlord and tenant is documented and all parties have signed.
- Include date and time- The actual move out date and time are noted, as well as the date and time that the tenants are given access to the unit for movers, a walkthrough, etc.
- Itemize the costs- All costs are listed including unpaid rent, cleaning fees, damage to the apartment, late rent, etc.
- Add the property address- The unit where the tenants were living is clearly identified.
- Mention all parties who need to sign- Besides landlord and tenant(s), others may need to sign the agreement.
- Include a copy of the residents’ ledger- This ledger will itemize exactly what the tenants owe in fees, and may help tenants understand the math behind the added charges.
- Keep in mind the notice requirements- If required, a 30-day-notice to quit must be considered.
Common Pitfalls to Avoid
Although it is possible to have a successful voluntary move out agreement even without much in the way of detailed provisions, it’s pretty easy to make some simple mistakes:
Mistake #1: Don’t use your standard rent control or lease form to attempt to create a voluntary move out agreement. What these 2 types of agreements usually have in common are that they are written from the landlords’ point of view, giving the landlord no penalties (except money) for failing to hold up his or her end of the bargain, and limited penalties (usually money) for the tenant in the event that he or she fails to keep a promise. In contrast, a voluntary move out agreement requires that the solutions for breach of promise be clearly outlined, so that if either party fails to live up to a promise, he or she must pay the other party a specific, agreed upon penalty. For example, if the landlord agrees to give the tenant $5,000.00 to help him or her move out in exchange for a move out by the end of next month, then if the tenant fails to move out by that time, he or she owes the landlord $1 , 000.00 for each week’s delay caused by the failure to move out by the agreed upon date. The operative word here is "agreed."
Mistake #2: Don’t put in a voluntary move out agreement what are really covenants of habitability or Rent Control provisions: I’ve seen this happen more than once. A landlord who is intending to use a voluntary move out agreement as a replacement for a decision which is causing the landlord to lose a Renter’s Ordinance jury trial (which is most often the case), decides to include housing habitability provisions which have nothing to do with moving in or out of the unit, such as: (i) keeping the unit livable according to all the housing codes; or (ii) providing the tenant with hot and cold running water and heat on demand at all times. This problem goes both ways: it is just as likely for a tenant to try to slip into a voluntary move out agreement a promise to pay past due rent or otherwise cure some breach of habitability as it is for a landlord to slip in a tenant’s rent control habitability obligations into a CMRAA. The fact of the matter is, if you want habitability obligations (as opposed to moving obligations) set forth in the voluntary move out agreement, then you have to put them clearly (in writing) in the rental agreement and make the voluntary move out agreement void if there is any breach of the rental agreement or the voluntary move out agreement.
Situations Where You’d Use a Voluntary Move Out Agreement
A voluntary move out agreement may be a useful tool if a tenant is behind on rent and in light of circumstances, it is just a better decision for both the landlord and tenant to just part ways. If an owner wants a tenant out but wants to avoid the cost and time of filing an unlawful detainer action, using a voluntary move out agreement instead of a three day notice to pay rent or quit may be appropriate.
Using such an agreement can be very beneficial in situations where the owner knows that the tenant is late or overdue on their rent, but the owner would also rather have the tenant move out voluntarily instead of going through the eviction process. While eviction is often a clear result of tenants who are in serious default, tenants are often a little behind in their rent rather than in serious default. If it makes sense to try to get the tenants to voluntarily vacate, a voluntary move out agreement might be the answer.
Additional Resources and Templates
The following resources are especially useful for California-based landlords who want to draft voluntary move out agreements to best comply with the law and protect their rights as property owners. While these resources largely apply to residential landlords, many can be adapted for commercial landlords.
Legal Services of Northern California: Forms
This resource is an excellent online option for California tenants and landlords. This site provides in-depth forms for virtually all situations and detailed guidance on how to fill them out. Perhaps most importantly, the site also provides clear instructions on how the form should be approached in relation to the law.
At the end of this page is a simple form that provides guidance on using voluntary move out agreements and an example.
California Tenants Union
This California site contains a section on "abandonment and move-out" that includes links to various articles on legal issues regarding abandonment , requirements on move-out forms and more.
Bankrate
This site’s "Move-Out Agreement" page provides a number of guidance options for landlords, such as draft clauses landlords can add to their lease agreements. While it’s directed at nonresidential tenants, much of this information is still relevant.
NOLO
This company, which publishes legal guides of all kinds and has a great reputation among California tenants associations, offers an online guide to the state’s landlord-tenant law. This guide addresses voluntary move out agreements.
California Tenants
This page provides an overview of the steps landlords need to take to pursue a civil lawsuit against an abandoned tenant. It includes a template for the notice tenants will receive when they are served with an unlawful detainer action.