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California's New Commercial Lease CASp Disclosure Requirement: Costs and Benefits to Owners, Landlords, and Tenants

At the end of 2012, a new law went into effect requiring all commercial leases executed on or after July 1, 2013 to contain an additional disclosure. Civil Code section 1938 requires a commercial property lessor - meaning a property owner/landlord - to disclose whether a Certified Access Specialist, referred to as a "CASp," has inspected the leased premises. CASps are trained by a State of California program to inspect and render professional opinions to property owners, landlords, and tenants, as to whether a property complies with construction-related accessibility standards under state and federal law - for example, the California Building Code and the Americans with Disabilities Act. Under Civil Code section 55.53, CASps are required to write a written report after inspecting a property that states whether it complies with all construction-related accessibility standards. If the property does not comply, the report describes what conditions need correction and provides a schedule with a "reasonable timeframe" for such corrections.

Currently, a lessor is not required to obtain a CASp inspection. Property owners, landlords, or tenants may choose to request a CASp inspection.- Why you may ask? Because there are litigation benefits to having a CASp report stating that the property is in compliance with applicable standards. In addition, a property that is inspected, regardless of compliance, will receive a Disability Access Inspection Certificate. Although this does not certify compliance, it can act as a deterrent to customers with litigious intent.

Civil Code section 1938 only requires a lessor to disclose: (1) whether there has been a CASp inspection, and (2) if there was an inspection, whether the leased premises met all applicable construction-related accessibility standards. However, beyond the new disclosure requirement, a CASp inspection is a new frontier in landlord-tenant negotiation. For example, a tenant may require the landlord to request a CASp inspection and to pay for any corrections deemed necessary to bring the leased premises into compliance. Therefore, it is important for both commercial landlords and tenants to be aware of benefits and potential costs of the CASp inspection program in addition to the new disclosure requirement.


Resources:

Cal. Civ. Code, §§ 55.51 et seq.

Cal. Civ. Code, §1938

Keith Rozanski, Measuring Compliance A Disability Access Certificate May Dissuade Potential Plaintiffs from Filing ADA Suits (Feb. 2014) L.A. Law. p. 18.

Department of General Services, Division of the State Architect, Voluntary Certified Access Specialist Program FAQs, <http://www.dgs.ca. gov/dsa/Programs/programCert/casp/consumerfaq.aspx> (as of Aug. 12, 2014).

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