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Leases & Accessibility – What now?

With the passing of California Senate Bill 1186 and its affect on the Civil Code, there are numerous questions about new lease requirements. Basically if you lease any commercial property from July 1, 2013 onwards, the lease form or rental agreement will need to state whether the property being leased has had a CASp inspection. And if a CASp has indeed inspected the property, what status did the property or portion of the property receive. The actual report is not required to be released.

In order to have a better understanding, this law was created to start a dialog on whether or not a facility is accessible – basically to heighten awareness of Accessibility issues. It was not meant to take away the voluntary nature of having a CASp inspection, but having a CASp report does provide a road map of how to make a property more accessible.

Right now, it has caused a rush for more information with the deadline of July 1st fast approaching. The language in the code is rather simple and is only one sentence long but it appears to raise more questions as you review it closely.

SEC. 12. Section 1938 is added to the Civil Code, to read:

1938. 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.

• One question is, do you need to state on the lease if you have not had a CASp inspection, or just if you did?
• Another question is, if the property is multi-tenant and an inspection by a CASp has been performed only on the common and public space, not the individual tenant space, what is said on the tenant lease?
• The next question is, should you use the terminology in the code for the status of a CASp report of “Meets Applicable Standards” or “Inspected By A CASp”?
• And the last question, for now, do you need to have a CASp report as fully delineated in the code or do you just need a walk-thru by someone who is a CASp?

Since this is new, there are going to be a number of opinions until there actually are interpretations by a court.

• From people who I have talked with, there does appear to be a consensus that it should state whether or not a CASp inspection has been performed.
• With the intent of this Senate Bill being informational, if the public and common space has had a CASp inspection but the to-be leased tenant space has not, then this information can be stated.
• If you have had a CASp inspection performed you can use the language provided on the report of “Meets Applicable Standards” (if everything is compliant), or “Inspected By A CASp” (if there are corrections or barrier removal items to be done) and include ‘as defined by California Civil Code 55.53’ to further clarify.
• There is also somewhat of a grey area as to whether having a CASp do a walk-thru on the property is adequate or whether a CASp inspection with a determination per Section 55.53 actually has to be done in order to state whether or not the property has undergone an inspection.

What is also somewhat confusing is, even if a CASp inspection was done for the previous tenant this does not necessarily mean the new tenant would receive the same designation for a number of reasons. But be sure to confirm with your attorney what is the appropriate language for your typical lease agreements since this is indeed a legal issue. But do be aware that if an existing building, whether pre or post-ADA, is not accessible, both the tenant and the owner could be liable. So it behooves you as the owner or the tenant to understand just how accessible the property is and what is planned to upgrade inaccessible features.

Be aware that your local City or County may have additional requirements that are more restrictive than the State or Federal requirements. Also, this article is an interpretation and opinion of the writer. It is meant as a summary – current original regulations should always be reviewed when making any decisions.

© Janis Kent, Architect, CASp 2013