February 23, 2017

Are Your Commercial Lease Forms ADA Compliant?

California recently enacted legislation that markedly increases disclosure requirements for commercial landlords regarding accessibility compliance.

Since 2013, Civil Code section 1938 has required commercial landlords to state on every lease whether or not a Certified Access Specialist (CASp) has inspected the premises. Effective January 1, 2017, the Legislature expanded the rights of tenants and required commercial leases to provide specific ADA and CASp related disclosures.

A commercial property owner must now provide the tenant with a current disability access inspection certificate and inspection report or a copy of a CASp inspection report, if such a report has been issued which indicates that the premises meet applicable standards.  If the premises have not been issued a disability access inspection certificate, the lease must state that if the tenant requests, the landlord must permit a CASp inspection of the premises, and that the parties must mutually agree on the time and manner of the inspection, the payment of the associated fee, and the cost of making repairs.

For premises that have been subject to CASp inspection, the landlord must also disclose whether the premises remain unmodified or altered since the date of the inspection with regard to construction-related accessibility standards, and provide a copy of the report.  The tenant is to keep the report confidential except as necessary to make repairs and corrections, as specified.

The new law presumes that the modifications necessary to correct violations of construction-related accessibility standards that are noted in a CASp report are the responsibility of the landlord unless otherwise agreed upon by the parties to the lease or rental agreement. Landlords must also give prospective tenants the opportunity to review any CASp report prior to execution of the lease, and if the report is not provided at least 48 hours prior to execution of a lease agreement, the prospective tenant has the right to rescind the lease based upon information in the report within 72 hours after signing the lease.

To avoid significant liability, commercial property owners should review and modify their leases and their leasing practices to comply with revised Civil Code section 1938. Commercial property owners, landlords, and tenants with questions should contact:

Richard K. Zepfel
(949) 797-1274

Thomas L. Vincent
(949) 797-1257