This year, we recognize 25 years of the coverage of the Americans with Disabilities Act (ADA) on workplaces and commercial establishments. While you may be most familiar with how employment policies and practices have been subject to the ADA and its regulations for the past 25 years, that is not the only significant impact of the ADA. Public entities and transportation providers have had obligations under the ADA too. In fact, a large part of the ADA specifically applies to places of public accommodations and commercial facilities. So, anyone who opens their doors for retail, service, office, or warehouse purposes is required to ensure full and equal enjoyment of all goods, services, facilities, and accommodations to those with disabilities.
What is required?
For existing facilities at the time the ADA became law, the Act requires that accommodations be made to bring those facilities into compliance, so long as removal of an access barrier or addition of an access improvement can be “easily accomplish[ed],” “without much difficulty or expense.” Note that this is not an all-or-nothing test. The ADA requires these modifications be made only to the “maximum extent feasible”, and alternative measures can be taken in their place.
For all new construction, including alterations to existing facilities, access for persons with disabilities is required to the “maximum extent feasible”, as well as auxiliary services such as interpreters or Braille print.
‘Don’t worry—all of this is in the lease!’
Here’s the catch. Allocating ADA responsibility and liability from landlord to tenant in a lease does NOT get the Landlord off the hook.
While lease provisions to this effect may be convenient for private ordering allocation of duties or beneficial for future impleading of tenants or indemnification suits, the bottom line is that no contract language will have the effect of releasing the landlord from their ADA responsibilities. All areas of the premises – common and exclusive – are subject to the ADA guidelines, and the landlord remains on the hook for all of it.
Cover your assets
As landlord, be sure to monitor your tenants’ premises – inside and out – for potential ADA violations. Do not assume that if they aren’t up to snuff it’s only their problem. Private individuals can — and quite frequently do — bring suit against tenants and landlords for injunctive relief (and attorney’s fees), and even the U.S. Attorney General can bring suit against landlords for hefty fines. In fact, there has become something of a cottage industry in some regions and with some types of public accommodations (highway exit hotels, gas and service stations, restaurants) of disabled persons partnering with attorneys to file multiple lawsuits to require changes and recover attorneys fees. While it’s been 25 years and you’d think everything is set and staid, for landlords, the ADA is never old news.