ADA Reforms – New Disclosure Requirement

    In the last several years multiple lawsuits have been filed against property owners alleging technical violations of the American with Disabilities Act and other access and disability related laws.  There has been concern that these laws have been exploited by a few plaintiffs at the expense of businesses who are substantially complying with their intent.  As a result, the California state legislature adopted a bill entitled S.B. No. 1086, which was filed with the Secretary of State on September 19, 2012 (“Bill”), to address access litigation reforms.  The Bill is intended to encourage and facilitate access compliance by building owners and businesses, as well as to amend certain litigation requirements to discourage meritless lawsuits.  Certain modifications addressed in the Bill include requiring additional procedural requirements for a plaintiff to file an access related lawsuit and developing educational material for businesses with respect to accessibility compliance.  Although there are a multitude of reforms set forth in the Bill, one change specifically affects commercial landlords entering into new leases.  Section 1938 of the California Civil Code, enacted as a result of the Bill, provides that any lease or rental agreement executed after July 1, 2013 by a commercial property owner shall state whether the property being leased has undergone an inspection by a Certified Access Specialist (“CASp”), and if so, whether the property has met all applicable construction-related accessibility standards.

The CASp Inspection

    The CASp inspection procedure was in effect prior to the passage of the Bill and is set forth in California Civil Code Section 55.53.  That statute provides that if a property owner so elects, a building inspector who is a certified access specialist shall inspect the property and determine whether it meets current accessibility standards.  If the property does not meet such standards, the CASp inspector shall detail specific changes the owner would need to make and the timeframe in which to do so, in order to comply.  If and when the CASp inspector has deemed that the property meets all accessibility standards, the building owner is issued a numbered disability access inspection certificate, which is then recorded in a book held by the CASp.  The certificate may also be posted at the affected property.  In order to obtain an inspection by a CASp member, a building owner would need to request a consultation with the local agency that would then provide the CASp certified inspector and charge a reasonable hourly rate to do so.  Although an inspection by CASp is not required, a defendant in a disability or access lawsuit may be entitled to a court stay of the claim (an order temporarily stopping any lawsuit) and an early evaluation conference if their property has received the certificate.  Essentially, an approval by CASp is evidence to the court that the building owner has most likely complied as necessary with the accessibility laws and perhaps the lawsuit is without merit.

Disclosure Now Required

    In order to comply with the Bill’s mandate, landlords should ensure their commercial leases executed after July 1, 2013 include language stating whether the property has been inspected by CASp, and if so, the results of such inspection.  It is important to note that a review by CASp continues to remain voluntary by a property owner.  The Bill simply requires disclosure in the lease whether an investigation by CASp has been completed or not.  It seems advantageous for an owner to request an inspection if they believe they are in compliance for the added protection against a disability lawsuit and the comfort to a potential tenant.  However, if the property does not pass, the owner would be required to disclose that fact in the lease.  This could be disconcerting to a prospective tenant who may wonder if any future compliance costs for the building will be passed down to them or if all of their guests will have proper access to the property.

    The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm.  We specialize in land use, development and entitlement law.  We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.