Posted by: Erin King
An Article by Steven E. Schraibman, AIA, CPE, CASp
There is an often misconceived notion amongst property and business owners that the whole nasty issue of ADA compliance will go away. The belief goes something along the idea that some magic piece of legislation will come along that will drive the disabled access activists and serial plaintiffs into the barren wasteland of forgotten legislative missteps, and then they can then simply go on with the business of, well, making business.
In California, we are particularly susceptible to this myopic mirage and every couple of years a "fix it” piece of legislation gets passed and signed into law that is supposed to do just that- fix it. But in essence this never really happens; instead of fixing on the target it simply moves the goal posts, which leaves all the players scurrying and jockeying for position. There are a multitude of reasons for this situation, much of which goes way beyond the scope of this article.
This issue is not about Democrat, Libertarian or Republican politics –it is simply about the American way. We do not discriminate. We are a nation of, to paraphrase Emma Lazarus’ immortal words emblazoned on the Statue of Liberty- "…Give me your tired, your poor, Your huddled masses yearning to breathe free…”
We in California are not alone. There are a gaggle of other states in which business and property owners are too apparently stymied by ADA dragons and demons. States like Texas, Florida, and Alabama to name just a few.
The latest bill in California that attempts to squeeze its ungainly bulk into that misshapen mold is SB1186, which was meant to reduce or even eliminate frivolous "ADA” litigation – except that the critical part, according to property owners and advocates was left on the cutting room floor- namely the part about a notice period identifying alleged barriers at a property before a would be plaintiff can sue.
This is not the first time this has happened where such a clause was omitted in the final bill, but in addition to this ‘slap in the face’ another requirement crept in; namely Section 12 of SB1186, which essentially requires a property owner to disclose (from July 1, 2013), in the event of a sale, refinance or lease, if the property has been CASp inspected.
"SEC. 12. Section 1938 is added to the Civil Code, to read
1938. A commercial property owner or lessor shall state on every lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a Certified Access Specialist (CASp), and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards pursuant to Section 55.53”
This essentially impacts all non-residential leases from July 1, 2013 onwards and not only impacts the property owners, but the property managers as well in that a failure to advise client’s correctly could have legal ramifications and potential loss of business implications as well.
The inspection has to be carried out by a CASp- not just any other party, which includes consultants who might otherwise be knowledgeable in all things ADA, but don’t have the CASp certification.
Properties inspected by a CASp consultant have to be brought into compliance with all applicable accessibility standards as identified in the CASp report. This means additional costs for the owner- something they might not have budgeted for.
One could also read other potential issues, such as the responsibility falling back to the owner for non-compliance issues in the actual tenant space and the cost of defending against litigation and indemnifying the tenants. Very often in the past owners would require that the tenant indemnify them against ADA barriers in the tenant space, but now an owner handing over a space that is identified as not being in compliance has additional legal exposure should they not correct the alleged access barriers.
Also if a potential tenant is looking at renting and finds two properties that are the same the prospective tenant who is savvy would likely go with the property that affords them the least exposure, i.e. the property that has been CASp certified and the identified barriers to access addressed.
If one reads into the possibilities that may evolve out of SB1186, it would appear that the long term implications seem to be leaning to all properties being CASp certified eventually and hence everything being compliant with all applicable accessibility standards. A similar situation can be found in residential real estate where in selling a house an owner must get a termite clearance.
This would in theory all but eliminate the serial plaintiffs and their cadre, but for an unwary owner or property manager, this could spell disaster. So instead of things becoming simpler, they just got more complex. And if you add to this the conflicts between the new (2010) federal ADA and the current California Accessibility code, a property owner runs the risk of being in violation of one if they are in compliance with the other.
So what is an owner or property manager to do? Well businesses in California have a gift in and it is called the CASp certificate. By having a property audited by a CASp inspector, not only is the property afforded certain "special legal rights” when it comes to litigation exposure, but in addition the owner may have a window of time to address barriers that are more significant and which may have a meaningful fiscal impact.
But aside from CASp and against traditional business protocol and current market trends in the insurance industry there is a company that is actually offering insurance in an area that is the single most litigious issue confronting business and property owners – ADA compliance.
A company based in California and with an extensive reputation in the property and real estate insurance environment – Sullivan Curtis Munroe has a unique product designed especially to afford protection from ADA lawsuits- ADA Compliance Plus®.
So to sum up it would seem that the sane approach would be to get CASp certified and obtain the ADA insurance. Don’t wait…just CASp it.
About Steve Schraibman
Steve Schraibman holds licenses as an Architect, General Contractor, Certified Professional Cost Estimator (CPE) and Certified Access Specialist (CASp). With his qualifications and broad range of experience he brings a multitude of related skills to the resolution of often complex problems that would ordinarily require the services of a number of experts.
Please visit our website at www.arcor-inc.com or call us to arrange a consultation.
San Diego (858) 481-4494 Los Angeles (310) 431-9389 N. Cal. (650) 468-0307