New Accessibility Disclosure Requirements for Commercial Landlords in 2013

 

3/12/2013

The California legislature and the San Francisco Board of Supervisors recently enacted separate laws imposing on landlords disclosure requirements relating to accessibility on commercial properties. In addition, the San Francisco ordinance requires revisions to leases and lease amendments for smaller commercial premises.

California Civil Code Section 1938

At the state level, new Civil Code Section 1938 requires that leases for all commercial properties entered into on or after July 1, 2013, disclose whether the property has been inspected by a Certified Access Specialist (CASp) and if so, whether the property has or has not been determined pursuant to a report prepared in compliance with Civil Code Section 55.53 to meet all applicable construction-related access standards.

Note that this requirement applies to ALL commercial properties and leases in California, not only places of “Public Accommodation” as defined in the Federal Americans with Disabilities Act (ADA) and the inspection must be made by a CASp and not just any third party inspector.

As with the ADA, this is a “civil rights” statute and is primarily enforced by private parties, in this case the tenant, in a civil suit. A tenant could claim that but for the landlord’s failure to make the requisite disclosure, the tenant would not have suffered the damage of itself being liable to a customer or employee claiming violation of the ADA. The landlord’s violation of the law could also be asserted by the tenant to deny a claim by the landlord for accessibility alterations, if under the terms of the particular lease, such are otherwise required to be performed by the tenant.

San Francisco Administrative Code Chapter 38

This new ordinance (Section 38.1 et. seq.) is intended to protect small businesses and imposes obligations on commercial property owners related to disability access on the ground floor and to public restroom facilities and related disclosures. Any new commercial lease or any amendment of an existing lease for a space of 7,500 square feet or less that is used as a “Public Accommodation” (as defined in the ADA ) is subject to these requirements. If the ordinance applies, as a general disclosure obligation and before entering into or amending a commercial lease, the landlord must give the existing or prospective tenant: (i) a written Disability Access Obligations Notice that must be signed by both the landlord and tenant, and (ii) a copy of the Small Business Commission’s Access Information Notice pamphlet in the tenant’s requested language.

In addition, before entering into the new lease (or amendment) the landlord must either (i) make necessary alterations to the premises to ensure that existing public restrooms, ground floor entrances and exits and path of travel are accessible by removing all architectural barriers to disability access to the extent that such improvements are required by and “readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense” (as defined in the ADA and related regulations) , or (ii) include in the Disability Access Obligations Notice prescribed language disclosing that the property may not meet all applicable construction-related accessibility standards.

Finally, the lease or amendment must include a provision specifying whether the landlord or tenant is responsible for making and paying for any disability access alterations and a requirement that each of the landlord and tenant will use reasonable efforts to notify the other if either makes alterations to the premises which might impact accessibility as required under either state or federal law.

Note that:

• Public Accommodation is defined broadly in the ADA to include any business open to the public, including retail, health care, professional office, lodging, entertainment venues, social service agencies, schools, gymnasiums, museums and recreation facilities; and
• As with Civil Code Section 1938, the ordinance does not include any provision regarding penalties for non-compliance, so will be primarily enforced by civil suits brought by tenants claiming violation.

This new ordinance was effective January 1, 2013 with respect to leases (and amendments) for spaces 5,001-7,500 square feet and on June 1, 2013 will also apply to leases (and amendments) spaces of less than 5,000 square feet.