November 8, 2016

New ADA Compliance Disclosures Required for California Commercial Landlords

Holland & Knight Alert
Karl J. Lott

California Gov. Jerry Brown on Sept. 16, 2016, signed into law AB 2093, which amends California Civil Code Section 1983 and expands disclosures regarding certain Americans With Disabilities Act (ADA) matters. The requirements of the new law apply to all California commercial leases executed on or after Jan. 1, 2017.

Under the prior law, which remains in effect through the end of 2016, commercial leases were required to state whether the property had been inspected by a Certified Access Specialist (CASp) to determine whether the property met all applicable construction-related accessibility standards. If the property had been inspected, the lease was required to state whether the property had passed or failed the inspection.

The new law keeps the notice requirement of the prior law and adds several new requirements.

If a Building Has Been Inspected by a CASp

If a property has been inspected, the landlord now must provide a copy of the inspection report to the prospective tenant at least 48 hours prior to execution of the lease. If the report is not provided at least 48 hours prior to execution, AB 2093 gives the tenant the right to rescind the lease, based upon information contained in the report, within 72 hours after execution of the lease. Regardless of whether the landlord provides the report to the tenant prior to the execution of the lease, if the report indicates that the property meets all applicable standards, the landlord must provide the tenant with a copy of the current disability access inspection certificate and any inspection report within seven days of the execution of the lease.

If a Building Has Not Been Inspected by a CASp or Has Not Been Issued a Disability Access Inspection Certificate

If a property has not been inspected or has not been issued a disability access inspection certificate, AB 2093 requires the landlord to include specific language in the lease stating that a CASp can inspect the property at the prospective tenant's request and that the time, manner and payment of fees for the inspection, as well as the cost of necessary repairs identified by the inspection, shall be mutually agreed upon by the landlord and tenant. Furthermore, AB 2093 creates a presumption that any repairs or modifications necessary to correct violations noted in an inspection report are the responsibility of the landlord, unless otherwise agreed among the parties.

Things Commercial Landlords Should Do to Comply

All commercial landlords in California should review and modify their current lease forms prior to the end of the year to ensure compliance with AB 2093's new requirements. Commercial landlords should also include language to specify who is responsible for making repairs or modifications required to correct violations discovered by an inspection. Most importantly, if a CASp inspection has occurred, landlords should ensure that those reports and any disability access inspection certificates are available to be given to tenants in the manner and at the time provided by AB 2093 so that a tenant may not rescind a lease after execution.

If you have any questions regarding these new requirements or need assistance updating your lease forms, contact the author or another member of Holland & Knight's West Coast Real Estate Group.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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