CASp Provisions in California Commercial Real Estate Leases
In California, commercial real estate leases must include specific language allowing a tenant to request an inspection of the premises by a Certified Access Specialist (CASp). This requirement, established under California Civil Code Section 1938, took effect in 2017 and is designed to ensure transparency and compliance with state mandated accessibility standards. While a CASp inspection is not mandatory, the disclosure of whether such an inspection has been performed is legally required. Understanding the implications of CASp provisions and how to navigate them is important for both landlords and tenants.
What Is a CASp Provision?
A CASp provision in a commercial lease refers to the clause that discloses whether the leased premises have been inspected by a Certified Access Specialist. CASp specialists are experts trained to evaluate properties for compliance with construction-related accessibility standards, including those mandated by state and federal laws. The purpose of a CASp inspection is to identify whether a property meets accessibility requirements, such as those outlined in the Americans with Disabilities Act (ADA) and other state regulations.
Under California law, while property owners are not required to have their properties inspected by a CASp, but they must inform prospective tenants if such an inspection has occurred. In addition, the statute mandates the inclusion of a specific notification in the lease, stating:
“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.”
In addition to including the foregoing notification in the lease, if the property has been the subject of a prior CASp inspection, the landlord must provide the results of that prior inspection to a prospective tenant at least 48 hours prior to lease signing. If the landlord fails to timely provide the report, the tenant may cancel the lease within 72 hours of signing based on the information in the report.
Considerations in Negotiating CASp Provisions
As set out directly in the statutorily required language, there are a few considerations to be negotiated and agreed upon by a landlord and tenant relating to a potential CASp inspection, notably: (i) the time and manner of the CASp inspection, (ii) payment for the CASp inspection itself, and (iii) responsibility to perform and pay for any repairs or replacements necessary to correct any violations identified in an inspection once performed.
Cost and Responsibility for Inspection
Sophisticated landlords typically require in a lease that if a tenant requests a CASp inspection, the cost of the inspection will be the tenant’s responsibility. This allocation of responsibility protects landlords from unexpected expenses while satisfying their statutory obligations.
Timing and Approval of Inspections
Landlords generally require that any CASp inspection requested by the tenant be conducted at a time that is convenient for both parties and does not disrupt other tenants or operations within the building. Moreover, the landlord typically retains the right to approve the specific timing and manner of the inspection, ensuring that it is conducted professionally and with minimal impact on the property.
Repairs and Modifications
Similar to the allocation of responsibility for the report itself, most California landlords will require that if a CASp inspection identifies that the premises do not comply with accessibility standards, the tenant will be responsible for the identified repairs/replacements. The landlord will frequently reserve to itself the right to perform this work, which it may elect to do, especially if the required work impacts the building structure or building systems, but even if the landlord actually performs the work, most leases will provide that the tenant will remain responsible for the work. This approach limits the landlord’s exposure to potential costs and liabilities associated with compliance issues and ultimately tends to dissuade tenants from requesting a CASp inspection.
Conclusion
Although CASp inspections are rare, landlords should be sure to meet their statutory requirements by including the required notification to tenants and allocating responsibility for costs and work associated with a potential inspection.
