The Hit & Myth of ADA Compliance
Thursday, June 20, 2013
Posted by: Erin King
"The Hit & Myth of ADA Compliance©”
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
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
"SEC. 12. Section 1938 is added to the Civil Code, to read
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
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
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
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 –
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
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.
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