New Accessibility Disclosure in Commercial Leases

California Civil Code §1938 requires all commercial leases to contain an accessibility disclosure which states whether the property has been inspected by a Certified Access Specialist (CASp) and, if so, whether the premises has been determined to meet all applicable construction-related accessibility standards per California Civil Code §55.53. California Civil Code §1938 does not require that a CASp accessibility assessment actually be performed. Rather, it requires an accessibility disclosure of whether a CASp inspection has been performed and, if so, the results of the accessibility assessment. The decision to perform a CASp inspection should be carefully considered. The inspection could identify items of non-compliance that are costly to correct and could have negative implications if not corrected if you are later served with an ADA accessibility lawsuit. If a CASp inspection is performed and identified items of non-compliance are corrected, you will be entitled to certain benefits if you are later served with an ADA accessibility lawsuit—a 90 day stay of the action, a type of early settlement conference and reduced penalties. California Civil Code §55.53 sets forth the criteria for a written assessment of whether a site meets all applicable construction-related accessibility standards or whether corrective actions are required.

Most of the commonly used pre-printed commercial lease forms now include the required disclosure. If you are using a pre-2013 form or using your own form of commercial lease, revise it to include a statement as to whether a CASp accessibility assessment has been performed on the premises and, if so, its results. If the assessment was performed on the exterior and common areas of the building and not the interior of the premises, make that distinction in the disclosure. With regard to recently acquired property, you may not know whether a CASp assessment has been performed on the property. Unfortunately, California Civil Code §1938 is silent as to whether the disclosure can be qualified to your actual knowledge. When purchasing commercial property, add CASp assessments to your list of requested documents and to your list of requested representations from a seller.

To fully understand how an accessibility disclosure may be relevant to your bottom line, please contact Lisa Stalteri, Co-President and Chair of the Real Estate group at Carr McClellan, one of the most competent and prestigious law firms in the Bay Area. Lisa has over 25 years of experience in commercial real estate transactions, having counseled clients in all areas of commercial property including leasing, financing, construction, and acquisitions. You can email her directly at lstalteri@carr-mcclellan.com.