New ADA notices now required in commercial leases
February 6, 2017
The Americans with Disabilities Act (ADA), established in 1990, requires all properties open to the public to be made accessible to persons with disabilities. California has its own very similar version of the federal ADA.
As of January 1, California is taking ADA requirements to a new level for commercial leases. If you are a commercial property owner or landlord, pay attention.
Existing California law requires a commercial property owner or landlord to state on every lease signed after July 1, 2013, whether the property has been determined by a CASp inspector to meet construction-related accessibility standards.
A CASp inspector is a Certified Access Specialist (CASp), an ADA expert certified by the State. CASp specialists inspect and provide reports on whether commercial buildings meet accessibility requirements.
So for almost four years, commercial property owners and landlords have been required to include a statement on every lease whether the property has been inspected by a CASp specialist for compliance with construction–related accessibility standards. Thousands of pages of standards BTW.
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Notices after January 1, 2017
As of January 1st, if the property has undergone a CASp inspection, the property owner or landlord must provide the CASp Report to the tenant before the lease is signed.
The prospective tenant has a right to review any CASp Report before signing the lease. If it is not provided to the tenant at least 48 hours prior to signing the lease, the tenant may cancel the lease for 72 hours after signing.
If the CASp Report concludes the building meets all applicable ADA requirements, the owner or landlord must provide the Disability Access Inspection Certificate (Clearance) to the tenant within seven days of when the lease is signed.
No CASp Inspection
If the property has not had a CASp inspection, the owner or landlord must include this notice on a commercial lease:
"A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises."
Nuances of New Law
This amendment to Civil Code Section 1938 is relatively short, so there are plenty of unanswered questions that will no doubt work their way through the courts in coming years.
For example, the new law seems to also apply to subleases. The new law establishes a presumption that making repairs or modifications necessary to correct violations of construction-related accessibility standards noted in a CASp report is the responsibility of the commercial property owner or landlord — vs. the tenant — unless the landlord and tenant otherwise agree in the lease.
The goal of revised Civil Code Section 1938 is meritorious: to encourage commercial landlords and tenants to discuss the possibility of ADA violations in the building before a lease is signed or before someone in a wheelchair sues the landlord and tenant for ADA violations.
I understand the goal of this new law, but I see potential unintended consequences. I frequently encourage commercial property owners to order CASp inspections so they know where they stand as to meeting accessibility requirements.
But revised Section 1938 may reduce the incentive for property owners and landlords to order CASp inspections because of these new disclosure requirements.
If you're a commercial property owner or a commercial landlord, read Section 1938.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, ADA defense, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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