Managing the Property Owner's Duties and Risks Under the ADA
Real Estate Newsletter
A Primer on the Federal Law and an Update on California's 'Disability Access Certification' Program
2010 will mark the 20th anniversary of the Americans with Disabilities Act (ADA). Yet many property owners are uncertain about how the ADA affects them. The FAQs below provide a brief outline of property owners’ duties under the ADA, the risks of non-compliance, and steps an owner or occupant can take to manage those risks.
Q. What is the ADA?
A. Under the ADA, disabled people have the right to full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations in all facilities open to the public. To ensure that right, the ADA requires the removal of barriers to access in places of public accommodation. The ADA provides a right of private action – that is, a lawsuit by one or more disabled person(s) -- to enforce the ADA’s requirements for access.
Several states, including California, have their own laws requiring businesses and property owners to make their premises and services accessible to people with disabilities, and those state laws may impose penalties for non-compliance in addition to the penalties available under the federal ADA.
Q. Who must comply with the ADA?
A. Most properties open to the public must be ADA compliant, including:
- Retail establishments
- Theaters and cinemas
- Places of lodging
- Medical offices
- Places of public gathering
- Places of exercise and recreation
It is important to note that, where a property is leased by a business that is open to the public, the landlord and the tenant are jointly responsible for complying with the ADA. Even if one party has assumed that responsibility under the lease, both parties can be sued and found liable for non-compliance.
Q. When must a business or property owner take action to comply with the ADA?
A. One common misconception about the ADA is that it imposes duties on a property owner only if the property is materially altered in some way. That is not true. In fact, businesses and property owners have a continuing duty to ensure compliance with the ADA compliance, including:
- The duty to ensure that new construction projects and modifications to existing structures are ADA compliant. The fact that construction or modifications are approved by local building inspectors does not ensure that the work is ADA-compliant, as inspectors in some areas are not adequately trained to identify ADA access issues.
- The continuing duty to remove access barriers whenever it is “readily achievable.” What is “readily achievable” depends on a number of variables but even substantial modifications may be deemed necessary under the ADA. For example, one court found that the modification of a hotel’s showers, costing upwards of $130,000, was readily achievable and therefore required under the ADA. Other examples of “readily achievable” measures include:
- installing ramps;
- making curb cuts in sidewalks and entrances;
- rearranging tables, chairs, vending machines, display racks, and other furniture;
- widening doors;
- eliminating a turnstile or providing an alternative accessible path;
- creating designated accessible parking spaces.
Q. What are the penalties for failing to comply with the ADA?
A. Compliance with the ADA can be expensive and time-consuming, but failure to comply is likely to be even more costly. Property owners and businesses in violation of the ADA potentially face:
- Lawsuits brought by disabled persons for money damages and an injunction to force the removal of access barriers. A successful plaintiff in such a suit is entitled to recover his or her attorneys’ fees as well, which can far exceed the amount of actual damages.
- Fines of up to $50,000 for the first violation, and up to $100,000 for any subsequent violation.
- Court-ordered modifications to facilities to provide proper access to disabled persons.
Q. How can one manage the obligations and reduce the risk of claims under the ADA?
A. Property owners can help to minimize their risks under the ADA by taking some common-sense precautions:
- Have the property inspected by a consultant who is knowledgeable about ADA compliance to identify non-compliant conditions and possible remedies.
- Take action to remove access barriers where possible. Make sure to maintain a record of the results of the inspection and any remedial action taken.
- Don’t ignore complaints about access barriers. Potential litigants often complain to a business or property owner in writing before filing suit. When those complaints go unanswered, a lawsuit is frequently the result. If you receive a complaint - whether in writing or not - and you are able to respond, consult with legal counsel immediately. By being proactive in response to a complaint, you may be able to avoid costly litigation.
Q. How does California’s ADA Certification program work?
A. California now provides a program to help businesses and property owners satisfy the stringent requirements of the ADA and mitigate the risk of protracted litigation:
- Under the law, qualified ADA consultants can become Certified Access Specialists (CASp) who inspect properties for compliance with accessibility standards.
- The CASp assesses the characteristics of a property, and determines whether the property is in compliance with disability access laws -- i.e., whether there are architectural or other barriers to access for the disabled and, if so, whether removal of those barriers is “readily achievable.”
- If the CASp determines that barrier removal is “readily achievable,” then he or she can provide a detailed list of the corrections to be made, suggest cost-effective ways to make those corrections, and help the property owner coordinate a schedule of completion for each of the corrections.
- After inspection by the CASp, the state architect may issue a “Disability Access Certificate” to the property owner.
Q. What are the benefits of certification?A. The certification process is not a “safe harbor” for property owners, nor does it provide owners with immunity from ADA claims. But obtaining a “Disability Access Certificate” has some advantages. The certificate can help a property owner avoid ADA claims by warding off vexatious litigants who target uninformed property owners. Additionally, if an action is filed, streamlined court procedures may be available to certified property owners that can minimize the burden and expense of the litigation and move a suit toward an early resolution.