Amendment to California Law Requiring Disclosure of ADA Inspection in Commercial Leases | Practical Law

Amendment to California Law Requiring Disclosure of ADA Inspection in Commercial Leases | Practical Law

California Governor Jerry Brown recently signed into law Assembly Bill 2093, which amends California Civil Code Section 1938 requiring commercial real estate landlords to disclose disability access inspections and compliance. This law goes into effect immediately.

Amendment to California Law Requiring Disclosure of ADA Inspection in Commercial Leases

by Practical Law Real Estate
Published on 12 Oct 2016 • California
California Governor Jerry Brown recently signed into law Assembly Bill 2093, which amends California Civil Code Section 1938 requiring commercial real estate landlords to disclose disability access inspections and compliance. This law goes into effect immediately.
On September 16, 2016, California Governor Jerry Brown signed into law Assembly Bill 2093 (AB 2093), which amends California Civil Code Section 1938 by expanding the disclosure requirements under that Section. The amendment is intended to give commercial landlords and tenants a better opportunity to address any disability access violations during lease negotiations to avoid future Americans with Disabilities Act (ADA) litigation. The amendment goes into effect immediately but only applies to commercial lease agreements executed on or after January 1, 2017.

California Civil Code Section 1938

Before the passing of AB 2093, California Civil Code Section 1938 required commercial landlords to disclose on commercial leases executed on or after January 1, 2013 whether:
  • The property has been inspected by a Certified Access Specialist (CASp).
  • If so inspected, the property meets applicable construction-related accessibility standards under Cal. Civ. Code Section 55.53.

Amendment AB 2093

California Civil Code Section 1938, as amended by AB 2093, now requires commercial landlords to disclose on commercial leases executed on or after January 1, 2017 whether the premises have been inspected by a Certified Access Specialist (CASp).
If the premises (note that the amendment specifically changed the language from "property" to "premises") have been inspected by a CASp and there are no alterations affecting accessibility since the inspection, either of the following apply:
  • If the CASp report indicates violations of accessibility standards:
    • the landlord must provide the prospective tenant a copy of the CASp inspection report at least 48 hours before the execution of the lease;
    • the landlord is presumed to be responsible for correcting any violation noted in the CASp report unless the owner and tenant mutually agree otherwise; and
    • if the CASp report is not provided to the prospective tenant within the required time period, the tenant has the right to rescind the lease within 72 hours after executing the lease
  • If the CASp report indicates the premises meets applicable accessibility standards, the landlord must provide the CASp report and certificate to the tenant within seven days after the execution of the lease.

Required Lease Language

If the premises have not been inspected by a CASp, the landlord must include the following language 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."