10.27.2016

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Updates

Perkins Coie published an alert on July 1, 2013 regarding California legislation (SB 1186), which required disclosures in commercial leases as to whether the property being leased had been inspected by a Certified Access Specialist (CASp). On September 16, 2016, new legislation (AB 2093) was enacted to encourage parties to acknowledge accessibility issues and address any necessary remediations during lease negotiations. The additional requirements with regard to accessibility issues for leases executed on or after January 1, 2017 are as follows:

  1. Within seven days after execution of a commercial lease, the lessee must be provided with a disability access inspection certificate and the CASp report if all of the following criteria are met: (a) the premises have been inspected by a CASp, (b) to the best of the lessor’s knowledge, there have been no modifications or alterations impacting the premises’ compliance with construction-related accessibility since the inspection, and (c) the CASp report indicates that the premises meets applicable accessibility standards. The inspection certificate is issued with the CASp inspection report. It is important to note that it is a certificate of inspection, not compliance.  
  2. At least 48 hours prior to the execution of a commercial lease, the prospective lessee must be provided with the CASp report if all of the following criteria are satisfied: (a) the premises have been inspected by a CASp, (b) to the best of the lessor’s knowledge, there have been no modifications or alterations impacting the premises’ compliance with construction-related accessibility since the inspection, and (c) the CASp report indicates that the premises does not meet applicable accessibility standards. Failure to provide the CASp report at least 48 hours prior to lease execution entitles the lessee to rescind the lease for up to 72 hours after lease execution. 
  3. The CASp report becomes irrelevant if there have been modifications or alterations that have occurred after the inspection that impact the premises’ compliance with construction-related accessibility. The law treats this scenario as if the inspection had never occurred.  Under this scenario, or if the premises have not been inspected by a CASp, the lease must contain the following provision:

“A Certified Access Specialist (CASp) can inspect the 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 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 required 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 necessary to correct violations of construction-related accessibility standards within the premises.”

Any repairs or modifications necessary to correct violations of accessibility standards noted in the CASp report are presumed to be lessor’s responsibility, unless the parties mutually agree otherwise in the lease documentation. The lease documentation, or a separate confidentiality agreement, shall provide that the CASp report remain confidential, except as necessary for the lessor and prospective lessee to complete repairs and corrections of violations of accessibility standards.

Please see the SB 1186 / AB 2093 Flow Chart below for further clarification of these rules.

© 2016 Perkins Coie LLP


 

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