As of July 1, 2013, California Civil Code §1938 required all commercial leases to state whether the premises have been inspected by a “Certified Access Specialist” (“CASp”) and, if so, whether the premises has or has not been determined to meet all applicable construction-related accessibility standards per California Civil Code §55.53.  California Civil Code §55.53 sets forth the criteria for a written assessment of whether a site meets all applicable construction-related accessibility standards or whether corrective actions are required.  California Civil Code §1938 does not require that a CASp accessibility assessment actually be performed.  Rather, it requires disclosure of whether one has been performed and its results.

California Civil Code §1938 is silent as to whether an owner is permitted to qualify the disclosure to be to the owner’s actual knowledge.  An owner may not know whether a CASp assessment has been performed with regard to its current property holdings.

Most of the commonly used pre-printed commercial lease forms now include the required disclosure.  If you are using a pre-2013 form or using your own form of commercial lease, revise it to include a statement as to whether a CASp accessibility assessment has been performed on the premises and, if so, its results.  If the assessment was performed on the exterior and common areas of the building and not the interior of the premises, make that distinction in the disclosure.  When purchasing commercial property, add CASp assessments to your list of requested documents and to your list of requested representations from a seller.

The decision to perform a CASp inspection should be carefully considered.  The inspection could identify items of non-compliance that are costly to correct and could have negative implications if not corrected if you are later served with an ADA accessibility lawsuit.  If a CASp inspection is performed and identified items of non-compliance are corrected, you will be entitled to certain benefits if you are later served with an ADA accessibility lawsuit – a 90 day stay of the action, a type of early settlement conference and reduced penalties.