Governor Jerry Brown signed Assembly Bill 2093, effective January 1, 2017, in an effort to curb the number of disability related lawsuits. California Civil Code §1938 requires the owner of commercial property in the state of California to disclose statutory specific language in every lease, or rental agreement, executed after January 1, 2017 if the commercial rental property has undergone inspection by a Certified Access Specialist (CASp), and if so, whether the property meets all applicable construction-related accessibility standards pursuant to California Civil Code §55.53.

Effective January 1, 2017, if a commercial property has not been issued a CASp certificate (a disability access inspection certificate), the property owner must incorporate the following statutory language in their standard commercial lease documents to provide prospective tenants with notice of their right to request a CASp inspection:

"A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs to correct violations of the construction-related accessibility standards within the premises."

The commercial landlord should also take care to further define the “time and manner” of the inspection, and should also include language in the commercial lease that passes any inspection costs, and compliance costs, onto the tenant.

If the premises have been inspected by a licensed CASp inspector, disclosure of the underlying report is REQUIRED at least 48 hours prior to the tenant executing the lease document. Failure to provide the full 48 hour waiting time period, will give the tenant the right to rescind the lease up to 72 hours after execution. Failure to disclose a CASp report that shows the premises require repairs to bring the premises in compliance with accessibility standards will give the tenant the right to rescind a fully executed lease document. That said, the lease may require that tenants keep the findings of the CASp report confidential, except to the extent necessary for the parties to complete repairs necessary to bring the premises in compliance with the accessibility standards.

California Civil Code §1938 does not specify any penalties or consequences if a commercial lease does not contain the required statement, but landlords should anticipate that tenants might use the lack of a Section 1938 statement in a lease signed after January 1, 2017 to argue that the landlord is solely responsible for any disability access violations on the property and must indemnify the tenant in any litigation regarding those violations.

What California Commercial Landlords Should Do Now.

1. If the commercial property has NOT undergone a CASp inspection, the Owner should immediately add the new statutory language into their standard lease along with additional provisions which set forth the time, manner and cost allocation of any future CASp inspection.
2. If the commercial property has undergone a CASp inspection, the Owner should immediately add the new statutory language into their standard lease along with additional provisions which set forth the time, manner and cost allocation of any future CASp inspection and should further disclose the report to the prospective tenant at least 48 hours prior to the tenant signing the lease.
3. Property owners should review the remainder of their standard lease forms to ensure that confidentiality provisions include language requiring the tenant to keep the results of any CASp report confidential, and that indemnity provisions are amended to account for the conduct of a CASp’s inspection.