GlobeSt.com: We discussed SB269 another disability-access related bill in June. How does AB2093 compare with SB269?

Giebeler: The two bills are closely related and together create a carrot-and-stick approach to encourage landlords and tenants of commercial property to obtain CASp inspections and correct disability access violations.

The previous bill, SB269, is the “carrot” and encourages landlords and tenants to obtain CASp inspections by offering certain protections from predatory lawsuits and disability-access-related claims if a property has been inspected by a CASp. The current bill, AB2093, is the “stick” and effectively forces landlords and tenants to address disability-access issues in commercial leases by mandating additional disclosures regarding CASp inspections, giving tenants the right to obtain CASp inspections independently if not previously done and creating a presumption that landlords are responsible for correcting accessibility violations.

Additionally, SB269 added a requirement that CASp inspections be disclosed publicly by listing a property's address and date of inspection on the State Architect's website, and in some cases by posting notices at the property. This public disclosure requirement may have deterred commercial landlords from obtaining CASp inspections. However, now that a tenant has the right to obtain a CASp inspection independently that will be disclosed publicly, and given the presumption that a landlord is responsible for correcting any violations identified by the inspection, landlords may now be more likely to obtain CASp inspections before leasing property so that they control the process and are able to identify any violations proactively and allocate the responsibility for correcting those violations in their leases.

GlobeSt.com: What must a commercial landlord do to comply with AB2093?

Giebeler: To comply with AB2093, commercial landlords generally must do the following:

1. Disclose in every lease of commercial property whether the property being leased has been inspected by a CASp.

2. If the property has been inspected, and there have been no alternations that would change the property's compliance with accessibility standards, provide a copy of the CASp report at least 48 hours before the lease is signed. The report may be provided with an agreement that the report will remain confidential except as necessary to complete corrections the tenant agrees to make.

3. If the property has been inspected and the CASp report indicates that the property complies with accessibility requirements, a landlord must provide a copy of the current disability access inspection certificate and the inspection report within seven days of the date of the execution of the lease.

4. If the property has not been inspected or if an inspection certificate has not been issued indicating whether the property is in compliance, then a landlord must make the following additional disclosure in its lease:

“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”

GlobeSt.com: What else should our readers know about this bill?

Giebeler:AB2093 will force commercial landlords and tenants to be more proactive about addressing the risk of disability-access violations in their leases. Tenants should generally benefit from the bill and do not need to do anything themselves to comply. Landlords need to carefully review the revised California Civil Code Section 1938 to ensure they correctly make the required disclosures and are aware of the risk of not obtaining a CASp inspection.

Finally, portions of the revisions to Section 1938 are ambiguous. As one example, while the revisions are to be “effective immediately,” the subsection regarding disclosing whether a property has been inspected by a CASp has been made effective only on and after January 1, 2017—even though this requirement has applied to all commercial leases since July 1, 2013 under the existing law—and each of the subsections regarding the additional requirements, which are new, do not indicate whether they are effective immediately or on January 1, 2017. Given this and other similar ambiguities, landlords may want to be conservative in interpreting and complying with the code.

SAN DIEGO—AB2093 requires more-extensive disclosures in commercial leases regarding a property's compliance with disability-access requirements—and more, Hecht Solberg' Goldberg & Bagley LLP partner Jonathon Giebeler tells GlobeSt.com. We spoke exclusively with Giebeler about the state bill and what commercial landlords need to know about it.

GlobeSt.com: Please explain what AB2093 does.

Giebeler: California Assembly Bill 2093, effective as of September 16, 2016, amends California's existing law to require more extensive disclosures in commercial leases regarding a property's compliance with disability-access requirements and to create a presumption that landlords are responsible for correcting violations of those requirements. Since July 1, 2013, California Civil Code Section 1938 has required landlords to disclose in every lease of commercial property whether the property being leased has been inspected by a Certified Access Specialist and, if so, whether the property complies with disability access requirements.

AB2093 amends this existing law to require commercial landlords to provide copies of CASp inspection reports and certificates to tenants before a lease is signed if the property has been inspected by a CASp, and if it has not, to include a form disclosure in commercial leases giving a tenant the right to independently obtain a CASp report. The new law also creates a presumption that, unless the lease provides otherwise, a landlord is responsible for correcting any violations of disability access requirements identified in a CASp report. Additionally, if a property has been inspected by a CASp and a tenant is not given a copy of the CASp report at least 48 hours before it signs the lease, the tenant now has the right to rescind the lease based on any information in the CASp report.

GlobeSt.com: We discussed SB269 another disability-access related bill in June. How does AB2093 compare with SB269?

Giebeler: The two bills are closely related and together create a carrot-and-stick approach to encourage landlords and tenants of commercial property to obtain CASp inspections and correct disability access violations.

The previous bill, SB269, is the “carrot” and encourages landlords and tenants to obtain CASp inspections by offering certain protections from predatory lawsuits and disability-access-related claims if a property has been inspected by a CASp. The current bill, AB2093, is the “stick” and effectively forces landlords and tenants to address disability-access issues in commercial leases by mandating additional disclosures regarding CASp inspections, giving tenants the right to obtain CASp inspections independently if not previously done and creating a presumption that landlords are responsible for correcting accessibility violations.

Additionally, SB269 added a requirement that CASp inspections be disclosed publicly by listing a property's address and date of inspection on the State Architect's website, and in some cases by posting notices at the property. This public disclosure requirement may have deterred commercial landlords from obtaining CASp inspections. However, now that a tenant has the right to obtain a CASp inspection independently that will be disclosed publicly, and given the presumption that a landlord is responsible for correcting any violations identified by the inspection, landlords may now be more likely to obtain CASp inspections before leasing property so that they control the process and are able to identify any violations proactively and allocate the responsibility for correcting those violations in their leases.

GlobeSt.com: What must a commercial landlord do to comply with AB2093?

Giebeler: To comply with AB2093, commercial landlords generally must do the following:

1. Disclose in every lease of commercial property whether the property being leased has been inspected by a CASp.

2. If the property has been inspected, and there have been no alternations that would change the property's compliance with accessibility standards, provide a copy of the CASp report at least 48 hours before the lease is signed. The report may be provided with an agreement that the report will remain confidential except as necessary to complete corrections the tenant agrees to make.

3. If the property has been inspected and the CASp report indicates that the property complies with accessibility requirements, a landlord must provide a copy of the current disability access inspection certificate and the inspection report within seven days of the date of the execution of the lease.

4. If the property has not been inspected or if an inspection certificate has not been issued indicating whether the property is in compliance, then a landlord must make the following additional disclosure in its lease:

“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”

GlobeSt.com: What else should our readers know about this bill?

Giebeler:AB2093 will force commercial landlords and tenants to be more proactive about addressing the risk of disability-access violations in their leases. Tenants should generally benefit from the bill and do not need to do anything themselves to comply. Landlords need to carefully review the revised California Civil Code Section 1938 to ensure they correctly make the required disclosures and are aware of the risk of not obtaining a CASp inspection.

Finally, portions of the revisions to Section 1938 are ambiguous. As one example, while the revisions are to be “effective immediately,” the subsection regarding disclosing whether a property has been inspected by a CASp has been made effective only on and after January 1, 2017—even though this requirement has applied to all commercial leases since July 1, 2013 under the existing law—and each of the subsections regarding the additional requirements, which are new, do not indicate whether they are effective immediately or on January 1, 2017. Given this and other similar ambiguities, landlords may want to be conservative in interpreting and complying with the code.