January 1, 2017, Civil Code § 1938 was expanded to require:
A Certified Access Specialist (CASp) report can reduce the minimum statutory damages and allow for a stay of the lawsuit pending a mediation session with the court. Effective January 1, 2017, revised Code Section 1938 also requires:
- A commercial property lessor shall state on every rental agreement whether or not it was inspected by a Certified Access Specialist (CASp) and if there have been any modifications and a copy of any CASp report given to the prospective tenant.
- Repairs are now presumed to be the responsibility of the commercial property owner or lessor, unless otherwise mutually agreed upon to shift the repairs to the tenant.
- The CASp report must be given to the prospective tenant at least 48 hours prior to execution of the rental agreement, or the tenant can rescind the rental agreement for 72 hours after execution of the agreement.
- The CASP report issues must be disclosed in the lease or rental agreement. The tenant must agree to keep the report confidential.
Full compliance with access disability laws is important both from a legal and social perspective. The CASp program was designed to encourage compliance by providing benefits in litigation. The changes to Section 1938 can, however, create strategic issues for landlords who are in the process of negotiating a commercial lease.
CASp is a good idea because many landlords are sued by private individuals (and lawyers seeking to profit filing numerous such lawsuits) for injunctive relief and the minimum statutory damages of $4,000 per plaintiff, per incident plus attorney’s fees and costs.