The Lease File: New Accessibility Disclosure Requirements

As an advisor specializing in representing office tenants, I always try to keep my clients well informed about changes in legislation  that may affect them.  One such  piece of new legislation is set to take effect this summer.

In September of last year, SB 1186 was passed which requires all commercial leases that have been entered into on or after July 1st, 2013 to disclose whether the premises being leased have been inspected by a Certified Access Specialist (CASp) and whether the premises are in compliance with accessibility requirements.  Specifically, the law states:

“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.”

So, how will this affect office tenants?  As many tenants (and many landlords for that matter) are not well informed about disability access issues,  the passage of this bill may give tenants some comfort as their landlords will now be compelled to conduct an inspection by a CASp.  Further, a landlord’s failure to comply may create increased liability for his tenant as in failing to comply, the landlord may be exposing his tenant to damages for which the landlord is ultimately liable.  One can imagine that a tenant in this situation may have a claim against his/her landlord for such an omission.

My primary suggestions would be first, to make certain any lease you sign has language in it that confirms that the landlord has complied with this new requirement; and if the landlord has not, make sure there is no language in the lease asking the tenant to acknowledge landlord’s failure to comply and assume risks associated with said lack of compliance.  As I’m not an attorney, I don’t know if that would pass legal muster, but one thing I’ve learned in my 20+ years as a tenant advisor is that landlords will try anything to shift risk, cost, and burden to the tenant!

On a practical level, tenants also need to be aware that this additional inspection may add to the time it would normally take to obtain a permit to occupy their new premises.  As it is unclear exactly how many CASp’s there are, and who they are, it is currently unknown how long one will have to wait to obtain an inspection.  Further, it is unclear whether the inspections be done “over the counter” from floor plans or done “in person”.   If the latter, this could present myriad new issues with respect to tenant-installed furniture and fixtures.

While at its surface, the new law appears to have more implications for landlords than tenants, many times what affects landlords trickles down to tenants and that is why I want my clients to be aware.

If you would like to discuss your lease, need more information,  or if you would like a referral to a qualified real estate attorney who can discuss this new law in more detail, please call me at 949-721-8880 and I would happy to assist.

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