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on or before June 30, 2012. In the event occupant fails to timely vacate, then any and all
waived rent shall immediately become due and payable.”(Italics added.)
The agreement also contains a general release by Burns, a waiver of the provisions
of section 1542, and an acknowledgement that the parties “have had the opportunity to
consult with counsel of their choosing and the Berkeley Rent Board, and that they
voluntarily execute this Agreement with full knowledge of its significance and with the
express intent to affecting the legal consequences provided by Section 1542 of the
California Civil Code, i.e., the extinguishment of all obligations.”
On June 30, 2012, Burns vacated the premises and received the consideration she
had been promised. Jason Mak never moved into the premises and in March 2013 the
Maks rented the premises to the Ziems at the rental rate of $2,395 per month. In May
2013, pursuant to a request by the Ziems, the Rent Board issued a “Certificate of
Permissible Rent Level” establishing the lawful rent ceiling as $1, 074.68 per month, the
maximum rent that could have been charged Burns had she still been in occupancy. The
Maks appealed the certificate, leading to an evidentiary hearing before a hearing
examiner. The Rent Board subsequently issued a final decision incorporating the decision
of the hearing examiner upholding the validity of Regulation 1016 and finding that the
presumption created by the regulation, that Burns had vacated the premises as a result of
the 60-day notice, had not been rebutted.
The Rent Board decision recites substantial evidence that Jason Mak never
intended to occupy the premises and that the sequence of events preceding Burns’
departure “is squarely within that described in the legislative history of Regulation 1016;
specifically, an owner notifies a tenant of their intent to end the tenancy for the owner or
a relative to move in, and a tenant who initially refuses to move ends up negotiating a
move-out agreement with the owner if an eviction proceeding is begun. Then, the owner
rents the vacated unit at market in the belief that the tenant ‘voluntarily’ vacated the
unit.” Here, the decision continues, “It is true that Ms. Burns willingly agreed to move
out for a certain sum of money. What hasn’t been shown, however, is whether there
would have been an agreement at all had the [Maks] not set things in motion by