CASp the Friendly Ghost: New ADA Law Adds New Requirement to Leases

By Jennifer E. Schulz

Lawsuits alleging ADA violations can be a goldmine for unscrupulous plaintiffs looking to make a quick buck by scaring landlords and tenants into a swift settlement, oftentimes based on minor violations. Back in 2012, Governor Brown signed legislation attempting to help curtail these types of predatory suits (see our prior discussion of that law here and here). Despite the requirements put in place 4 years ago, ADA lawsuits don’t appear to be declining. This month, in an effort to increase compliance with accessibility standards, improve a business’s ability to correct violations, and clarify responsibilities of landlords and tenants, Governor Brown signed a new law expanding the disclosure requirement.

Under the revised Section 1938 of the California Civil Code, all commercial property owners and landlords must state on every lease executed after January 1, 2017, whether the property has undergone an inspection by a Certified Access Specialist (CASp). If the property has had a CASp inspection, and there haven’t been any alterations that impact the property’s compliance with accessibility standards, then the CASp report must be given to the tenant at least 48 hours prior to execution of the lease. If the report is not timely provided to the tenant, the tenant has a 72-hour window after lease execution to rescind the lease based on information contained in the report. Any necessary repairs that are noted in the report are presumed to be the responsibility of the property owner/landlord (although the parties can agree otherwise). In addition, the property owner or landlord must—to the extent not disclosed prior to lease execution—provide a copy of the current disability access inspection certificate and any inspection report within 7 days after lease execution.

If the property has not been issued a disability access inspection certificate, then the lease must include the following disclosure:

“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.”

Presumably, the hope is that by bringing these issues up during lease negotiations, property owners and landlords will be encouraged to take proactive steps to cure ADA violations. Only time will tell whether this latest effort will be effective.

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