Starting July 1, 2013, commercial landlords will have a new duty to disclose to their tenants. California Senate Bill 1186, which became effective September 19, 2012, was enacted to cut down on frivolous shakedown demands in litigation, in addition to increasing disability access on commercial properties in California. For all commercial property leases entered on or after July 1, 2013, landlords must disclose the following in the lease:
1. Whether the leased premises has been inspected by a Certified Access Specialist (CASp) and if so,
2. Whether the leased premises has (or has not) been determined to meet all applicable construction-related access standards under California law.
Note that the new disclosure requirement does not create an affirmative duty for commercial property owners to have CASp inspections performed on their properties. However, in a commercial lease that has not been CASp inspected, the new disclosure may prompt the tenant to request such an inspection, or the tenant may undertake the inspection on his own.
SB 1186 will grant California landlords and tenants added protection against predatory lawsuits based on alleged violations of construction-related disability access law. This disclosure is relevant to tenants as tenants are often named as plaintiffs in accessibility lawsuits, and such compliance may afford tenants protection granted under SB 1186. In certain cases, a CASp inspection may be useful in limiting plaintiff’s statutory damages in a disability access case.
In addition to the new disclosure duties, as of January 1, 2013, SB 1186 has done the following:
1. Ban pre-litigation demand letters;
2. Prevent “stacking” of multiple claims to increase statutory damages;
3. Require that demand letters identify the barriers that prevent full and equal access to the business premises or services, as well as the dates the disabled person encountered those barriers; and
4. Reduce the amount of statutory damages available for unintentional violations of the law in certain circumstances, if landlord makes the necessary changes soon after a suit is filed.
Landlord are advised to review and revise their form commercial leases to comply with the provisions of SB 1186. For more information regarding this new disclosure or any other commercial real estate matter, please contact Evelyn Ginossi at 310.746.3837 or email her at firstname.lastname@example.org.