New Laws Mandate Commercial Lease Disclosures and Afford Protections Against ADA Lawsuits

Commercial landlords, tenants and business owners are now afforded certain protections from vexatious litigation filed by persons alleging violations of construction-related disability access laws.  The California legislature has enacted a three-pronged set of statutes that make it more difficult for such litigants to file such actions and reduce the available damages for such violations, but also mandate that commercial leases contain new disclosure language as to whether the subject premises has been inspected by a Certified Access Specialist (“CASp”) for construction-related accessibility compliance.

Disclosure in commercial leases:  Every commercial lease or rental agreement executed on July 1, 2013 or thereafter must include a disclosure as to whether the property has been inspected by a Certified Access Specialist, and if so, whether the property meets all construction-related accessibility standards.  Note that this disclosure requirement does not mandate that the property be inspected, just that the disclosure is made.  Nonetheless, it will be a prudent practice for owners and lessors to have their properties inspected, not only because tenants may be looking for violation-free properties, but because it will reduce the amount of damages available to plaintiffs who can prove violations of accessibility laws.

Notice before lawsuit:  As of Jan. 1, 2013, anyone intending to sue an owner, lessor or tenant of commercial property for accessibility violations must serve upon the owner, lessor or tenant, prior to filing the lawsuit, a detailed notice including specific facts of all alleged accessibility violations for which a claim may be filed.  The owner, lessor or tenant shall then have 30 days to respond in one of three ways: (1) state that corrections to bring the property into compliance will be made within 90 days of the response, (2) challenge the validity of the violations, or (3) state that corrections to the alleged violations have already been completed.  Only if the corrections are not completed or a challenge is made can a suit then be filed.

Stay/early evaluation notice and reduced statutory damages:  If a construction-related accessibility lawsuit pertains to a property that has been inspected by a Certified Access Specialist or where construction was approved after Jan. 1, 2008, defendants have a right to request a court stay and early evaluation conference.  In these circumstances, liability for minimum statutory damages may be reduced to $1000 per violation of any construction-related accessibility standards.

Bottom line: Property inspection by a CASp affords legal protections and may prove beneficial in leasing to tenants.

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