In hopes of encouraging landlords and tenants to confront accessibility issues, in 2012 the California legislature added Section 1938 to the Civil Code which, at the time, only required landlords of commercial properties to disclose whether or not the subject premises had undergone inspection by a Certified Access Specialist (CASp) and, if so, whether such premises had or had not been determined to meet applicable construction-related accessibility standards. Earlier this year the legislature expanded these requirements. For leases executed on or after January 1, 2017, landlords of commercial properties are required to disclose the following:
Whether or not the subject premises have undergone inspection by a CASp;
If the subject premises have undergone such inspection, a copy of any report prepared by the CASp, together with a copy of the current disability access inspection certificate if the inspection indicated that the premises meet applicable standards, shall be provided to any prospective tenant; and
If the subject premises have not undergone such inspection, the lease shall state the following:
“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.”
At the very least, landlords should review and revise all lease forms to ensure that they comply with current disclosure requirements. Section 1938, as amended, establishes a presumption that any repairs or modifications necessary to correct accessibility violations noted in a CASp report are presumed to be the responsibility of the landlord, unless otherwise agreed upon by landlord and tenant.
If the premises have not undergone a CASp inspection, landlord will want to amend the lease to provide the following: (a) any CASp inspection shall be performed at tenant's sole cost and expense; (b) tenant shall be solely responsible for the cost of any repairs, upgrades, alterations and/or modifications to the premises necessary to correct any violations of construction-related accessibility standards identified by such CASp inspection; and (c) repairs, upgrades, alterations and/or modifications may, at landlord's option, be performed by landlord at tenant's expense, payable as additional rent within ten (10) days following landlord's demand.
Tenants should consider obtaining a CASp inspection, since most leases attempt to shift ADA compliance to the tenant (sometimes expressly, but more often than not implicitly pursuant to a number of separate provisions relating to compliance with laws and maintenance of the premises, among other things). The lease should also distinguish between corrective actions within the premises from those in the common areas, and further clarification that remediation for which tenant is responsible shall in no event require structural alterations.
Both landlord and tenant, if ordering a CASp inspection, should consider procuring the report through legal counsel in order to have the coordination of those efforts, and interaction with the consultant, protected by applicable attorney client/work product rules.
The foregoing article was prepared by Richard Rasmussen and Pablo De Leon. Anglin Flewelling Rasmussen Campbell & Trytten LLP (AFRCT) is a full-service law firm, providing legal counsel in most every area encountered by businesses operating in the western United States.