Americans with Disabilities Act Compliance Update

Starting July 1, 2013 California Civil Code § 1938 requires commercial property owners to disclose in every lease whether or not the property has been inspected by a "Certified Access Specialist" ("CASp"). CASps are individuals certified by California as qualified and knowledgeable regarding construction related access to public accommodations.

If a CASp inspection has occurred, the commercial landlord is required to disclose whether or not the premises meet the applicable standards.

As full compliance is difficult to obtain, a CASp inspection can be a difficult issue for a landlord. From a practical standpoint the landlord will have to undertake required repairs.

No specific penalty is provided for failure to include the CASp statement in a lease; however; tenants might argue the absence of such a notice makes the Landlord liable for any non-compliance.

The enforcement of claims begins with the Americans with Disabilities Act of 1990 (the "ADA") which provides for the filing of civil complaints to obtain injunctive relief and attorney's fees if successful. Injunctive relief means that the deficiency must be corrected, which potentially can be quite expensive. California enhances the ADA by California Civil Code § 52 (a) for a case based on a claim of discrimination; the statute provides for an award of three times actual damage, but in no case less than $4,000. We should note that actual damages while possible are relatively rare. California Civil Code § 54.3 (a) for a case based on denial or interference with admission, provides for the same three times actual damages and not less than $1,000. Both can be plead, but it is an either-or award.

We should note that there is no grandfathering to exempt older buildings from compliance with the ADA. There are certain safe harbors. Additionally, older buildings' compliance obligations are limited by a general standard of reasonableness.

ADA violations are frequently a source of litigation. While most cases can be settled quickly, upon occasion one may encounter a plaintiff and attorney who are motivated to force a general compliance upgrade and insist upon litigating their case to conclusion. Landlords and tenants should attempt to avoid such cases.

If you have any questions on the above, please contact Michael Petersen, Esq. or any of the attorneys at Shulman Bastian Friedman & Bui LLP at 949-340-3400. 

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