With the passage of SB 1186 in 2012, the State of California enacted a number of new requirements with regard to accessibility issues. Among these was the creation of new California Civil Code Section 1938, which mandated that, for commercial leases executed on or after July 1, 2013, landlords include a statement indicating whether the premises had been inspected by a Certified Access Specialist (“CASp”), and if so, whether the premises had been found to meet all applicable access standards. These mandates were put in place in an effort to reduce the number of lawsuits being brought in the California courts over accessibility disputes, and to give California businesses incentives to maintain compliance with state and federal accessibility laws.
Last September, the California legislature passed, and Governor Jerry Brown signed into law, AB 2093, which amended Section 1938 on an urgency basis. As amended, Section 1938 now imposes the following additional requirements on all commercial leases executed on or after January 1, 2017:
- If a CASp inspection has been performed and, to the best of landlord’s knowledge, there have been no modifications to the premises that have affected its compliance with construction-related accessibility standards, the landlord shall deliver a copy of the CASp report to the prospective tenant prior to the execution of the lease, and the prospective tenant shall agree that the information in the report shall remain confidential, except as necessary for the tenant to complete agreed-upon repairs and corrections of violations of construction-related accessibility standards.
- The prospective tenant shall have the opportunity to review the CASp report prior to the execution of the lease. If the report is not given to the prospective tenant at least forty-eight (48) hours before execution of the lease, the tenant has the right to terminate the lease based on the information contained in the report within seventy-two (72) hours after the execution of the lease.
- Any repairs or corrections of construction-related accessibility standards noted in a CASp report shall be presumed to be the responsibility of the landlord, unless otherwise agreed by the landlord and tenant.
- The landlord shall give the tenant a copy of the current disability access inspection certificate and any other inspection reports not already provided to the tenant within seven (7) days of execution of the lease.
- If a disability access inspection certificate has not been issued with respect to the premises, the following language must be included in the 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.”
In view of these legislative changes, commercial landlords should make certain that they have reviewed their leases to ensure that they have complied with all of the disclosure obligations added by this law. In addition, commercial landlords would be well served to engage experienced counsel to make sure their leases adequately address the allocation of responsibility for repairs or corrections to their premises necessitated by CASp inspection reports, so that the presumption of landlord responsibility under this new law does not control in their situation.