April 25, 2017

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Disability Access and Lease Negotiations in California: What Commercial Landlords Need to Know

Recent amendments to an existing California statute regarding disability access for commercial property create requirements, of which landlords, tenants, and those representing them should be aware. These requirements, of course, are in addition to obligations that apply to commercial property under the Americans With Disabilities Act, or ADA.

The Statute

California Assembly Bill No 2093 required the State Architect to establish and publicize a program providing for the voluntary state certification of any person who meets criteria as a Certified Access Specialist (CASp). A CASp is an individual with the training and experience to inspect buildings and sites for compliance with applicable state and federal construction-related accessibility standards. The statute also requires a commercial property owner or landlord to include in every lease form, executed on or after July 1, 2013, whether a CASp had determined that the property met applicable construction-related accessibility standards.

September 2016 Amendment

As of September 9, 2016, the statute was amended to include additional requirements:

  • CASp Inspection and Certification: A commercial property owner or landlord must state in every lease, executed on or after January 1, 2017, whether a CASp has inspected the premises. If a CASp has inspected the premises, then landlord must provide a prospective tenant with an inspection certification and report indicating compliance with all applicable construction-related accessibility standards.

  • If no CASp inspection: If the premises have not been inspected, then the lease must include language stating that upon request of tenant, landlord may not prohibit a CASp inspection, and that the parties must agree on the cost and manner of the inspection and any repairs necessitated by the results of such inspection.

  • Failure to Provide Report: If landlord has not provided a report to the prospective tenant within 48-hours prior to the execution of the lease, then tenant may rescind the lease, based on the information contained within the report, for up to 72-hours following lease execution.

The Implications

The statute poses new risks and liabilities for California property owners and landlords, the most significant being the unilateral termination right provided to tenants resulting from landlord non-compliance.  Additionally, cost implications arise if the property requires repairs or modifications to satisfy applicable standards.  The costs of any such repairs are generally presumed to be the responsibility of landlord, unless the parties otherwise agree.  For their part, tenants should be aware of the benefit that this potential unilateral termination right provides, as an “exit strategy” not typically afforded.

For anyone representing landlords or tenants for commercial premises in California the statute is of obvious importance. More generally, however, the statute is a reminder to keep an eye out for similar laws that may be coming down the pipeline in other states.

© 2017 SHERIN AND LODGEN LLP

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About this Author

Samantha A. O’Malley, Sherin Lodgen, real estate transactions lawyer, commercial dispositions attorney
Associate

Samantha A. O’Malley is an associate in Sherin and Lodgen’s Real Estate Department. She represents clients in commercial real estate transactions, including acquisitions, dispositions, financing, land use, and leasing.

Prior to joining Sherin and Lodgen, Samantha was an attorney in the land management department of a Massachusetts-based telecommunications company. She previously served as a Fellow/Law Clerk to the Honorable Robert B. Foster of the Massachusetts Land Court, where she was one of the inaugural recipients of the 2012 Suffolk Law...

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Thomas Gorman, Litigation Attorney, Sherin and Lodgen Law Firm
Partner

Thomas P. Gorman is a partner in the firm's Litigation Department and chair of the firm’s Probate Litigation Practice Group. Tom represents plaintiffs and defendants in a wide variety of matters. Tom's litigation experience includes representing public bodies as well as private corporations, individuals, and associations in litigation matters such as probate and trust matters, insurance, personal injury, commercial disputes and torts, real estate, construction, and intellectual property.

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