Hello everybody. Most members of the Apartment Owners Association own or manage at least one apartment building. Some of those members, as well as non-member readers of this AOA magazine, may own commercial property, or at least aspire to someday own commercial property.
For those readers who are, or expect to become, involved with commercial property in California, my column this month will brief you on the “accessibility” disclosure requirements by the lessor to all new commercial tenants. In general, those disclosures pertain to the accessibility of the property by disabled persons.
First enacted in 2013, all lessors of commercial real property in California are required to set forth in the body of each new lease or other rental agreement whether or not the property being leased or rented has undergone an accessibility inspection by a California Certified Access Specialist (“CASp”). (Civil Code Section 1938)
If it has undergone such an inspection, the lessor must state in the agreement whether the property has or has not been determined to meet all applicable construction-related accessibility standards. Those construction standards are numerous. Readers who want an in depth understanding of them should start by reading California Civil Code Sections 55.52(a)(6) and 55.53, then follow up that reading with the text of the other code sections referenced in Sections 55.52(a)(6) and 55.53. You can Google those sections.
Better still, I urge commercial lessors to hire a CASp inspector (as discussed below), rather than trying to analyze the standards on their own.
Importantly, not only does California have its own disabled person standards for accessibility, the required disclosure (if an inspection has been conducted) includes a disclosure of whether or not the premises comply with the federal Americans with Disabilities Act (“ADA”).
The official name for the California disclosure law is Construction-Related Accessibility Standards Compliance Act.
The CASp laws apply to every commercial California lease, such as the leasing of a barbershop, the leasing of a book store, and the leasing of space to Best Buy or Bloomingdales in a major shopping center.
The so-called CASp inspectors are certified by the California Division of the State Architect. To locate such an inspector, you can Google the expression “California Certified Access Specialist List” or simply search this web address: www.apps2.dgs.ca.gov. Hundreds of names will come up on the State of California’s website.
Although a disclosure is required concerning accessibility, landlords are not required to actually have the inspection performed. They are only required to advise the prospective tenant of whether or not the inspection has been conducted, and if an inspection took place, the results of the inspection.
Thus, lessors have the choice: to inspect or not to inspect. If they choose not to inspect, they must advise the prospective applicant in writing on the lease that the premises may not meet the required construction-related accessibility standards. The verbiage of that advisory is lengthy, but here is a portion of it: “A Certified Access Specialist can inspect the subject premises and determine whether the … premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection…the commercial property owner may not prohibit the lessee or tenant from obtaining a CASp inspection of the … premises for the occupancy of the lessee or tenant. …” Civ.Code Sec. 1938(e).
Readers may read the full advisory by Googling “California Civil Code Section 1938(e).”
If the lessor did not conduct a CASp and the renter then leases the premises without engaging his own CASp inspector, the tenant takes the risk of having to improve the premises for disability compliance, such as the ADA, after he leases them. Of course, the lease may also address who will be responsible for ensuring that the premises comply with any disability construction requirements.
What is interesting is that State law does not impose any specific penalty or consequence for the failure of the lessor to include the disclosure in the rental agreement. Of course, if the information is withheld and the tenant is later cited for violations, no doubt the lessee will be looking to his landlord for reimbursement of the cost of compliance.
Another reason for the lessor to disclose (other than because “It’s the law!”), is that there is a safe haven for landlords from the predatory practices of professional plaintiffs who earn their living by exposing themselves to the violations, and then suing for compensation.
Under Civil Code Sections 55.53 and 55.54, a plaintiff who sues for a construction-related accessibility claim (such as noncompliance with disability regulations), must deliver a letter to a defendant at the time he serves the summons and complaint that the defendant’s statutory minimum damages may be reduced to $1,000 if he can procure a CASp report showing compliance.
These laws providing for a defense are very technical and are best left to the lawyer who defends the case. For purposes of AOA members and other readers, suffice it to say that obtaining a CASp inspection can control otherwise vexatious litigants who expose themselves to the violation just so they can file a lawsuit for monetary damages.
The CASp laws do not apply to apartment buildings—fortunately! But for any lessor of commercial real property in California, please be forewarned that you should definitely make a CASp disclosure in your lease. By doing so you might avoid having a lawsuit being filed against you, or at least make any litigation easier to defend.
Dale Alberstone is a prominent real estate attorney who has specialized in real property and resident manager law for 40+ years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.
The foregoing article was authored in October 2019. It is intended as a general overview of California law only and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Questions of a general nature are warmly invited. Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 269 S. Beverly Drive, Suite 1670, Beverly Hills, California 90212, or telephone Mr. Alberstone at (310) 277-7300.