New Mandatory Disclosures Become Effective July 1, 2013
New California Civil Code Section 1938 requires that beginning July 1, 2013, all commercial property owners and lessors must disclose whether their commercial property has been inspected by a Certified Access Specialist, which is an individual certified by the State of California to inspect properties for compliance with accessibility requirements imposed by California law and the Americans with Disabilities Act. If the property has been inspected, the lease must disclose whether the Certified Access Specialist determined that the property meets all “applicable construction-related accessibility standards” as detailed in the Construction-Related Accessibility Standards Compliance Act, which became effective in 2009 (Sections 55.51 through 55.545 of the Civil Code).
What does this mean for you?
- This new disclosure requirement applies to you if you are a lessor or sublessor of commercial property – office, industrial or retail.
- This new requirement only applies to leases executed on and after July 1, 2013. Whether the new requirement applies to a lease amendment entered into on or after July 1, 2013, will need to be determined on a case-by-case basis.
- If your property has been inspected by a Certified Access Specialist, at a minimum, you should make the inspection report available for the tenant’s review.
- When acquiring commercial property or entering into a commercial master or ground lease arrangement with the lessee, as part of your due diligence, ask the seller or lessor whether the property has been inspected by a Certified Access Specialist; and if it has, obtain a copy of the inspection report.
- Revise your form commercial leases to comply with the new disclosure requirement.
Section 1938 does not impose any fines or other penalties for failing to disclose. We expect, however, lawyers will apply various theories of liability to recover damages on behalf of tenants whose landlords fail to comply with the new law.
If you are considering engaging a Certified Access Specialist to inspect your commercial property, HechtSolberg can help analyze whether the legal benefits justify the cost in your particular situation.
Click here for a list of Certified Access Specialists.
HechtSolberg has developed model provisions to comply with the disclosure requirement and can help revise your commercial form leases.
For additional information, contact David Vogel or Jonathon Giebeler at 619.239.3444.