Beware: ADA Accessibility Disclosure Now Required in Commercial Leases

By Christopher J. Olson, Esq.

As of July 1, 2013, California law requires commercial property owners to disclose in their lease agreements whether the property being leased has been inspected by a Certified Access Specialist (CASp) and, if so, whether or not the property has been determined to meet all applicable construction-related accessibility standards as set forth in Civil Code §55.53.

California Civil Code §1938 states as follows:

A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp) and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards pursuant to Section 55.53.

California Civil Code §55.53 sets forth pertinent details regarding the nature and scope of a CASp inspection, including the role of the CASp in assessing whether the inspected premises meet the construction-related accessibility standards. A CASp inspection can be beneficial in identifying “readily achievable” corrections to barriers to access and otherwise help ensure compliance with federal and state accessibility requirements.

Civil Code §1938 does not specify any penalties or consequences for the failure to include the required disclosure. Landlords, however, should anticipate that tenants may argue that a failure to include the disclosure makes the landlord solely responsible for any accessibility violations. Tenants are also likely to seek indemnity for any resulting litigation costs and/or potentially eek rescission or termination of the lease.

Additionally, it is important that the lease address the critical issues of how the parties will comply with the ADA and California’s equivalent (Unruh Civil Rights Act), who will pay for any necessary improvements and who will absorb the cost of an ADA lawsuit. The ADA obligates anyone who “owns, leases (or leases to), or operates” a “place of public accommodation” to make sure that place or premises complies with ADA guidelines. Both a landlord and tenant can be sued and held liable to a third-party plaintiff for ADA violations. Consequently, commercial leases should include appropriate indemnification provisions so that liability and its associated costs can be appropriately allocated between the parties. Who will have the burden of paying for compliance and/or defending a lawsuit alleging accessibility violations are important questions. Those responsibilities should be expressly and clearly allocated in the lease.

For more information regarding ADA Accessibility Disclosures or any matters pertaining to your ADA issues, customer or employment practices, please contact Christopher J. Olson, Esq., (colson@smwb.com).

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The information provided in this issue of “Legal Notice” is general in nature and is not intended to answer every question that may arise under different fact situations and should not be relied on in the place of professional advice in a given case. If you have specific questions please contact Sweeney, Mason, Wilson & Bosomworth.

SWEENEY, MASON, WILSON & BOSOMWORTH is a Professional Law Corporation located at 983 University Avenue, Suite 104C, Los Gatos, California, 95032, telephone (408) 356-3000. This notice is designed to assist our clients and other business owners in spotting issues which may result in costly litigation and court awarded damages if allowed to continue unaddressed.

SWEENEY, MASON, WILSON & BOSOMWORTH’s philosophy is that by educating our clients, and other businesses, about their legal obligations, including changes in the law, we best serve our legal goal of minimizing or preventing expensive litigation. Check out more information in Real Estate Law.