The Americans With Disabilities Act (ADA) prohibits discrimination based on disability. Title III of the ADA requires that businesses provide accommodations to persons with disabilities and access that is equal or similar to that available to the general public. What many property owners do not realize is that the ADA applies to landlords, even if the landlord delegates disability accommodation to its tenant. Failing to understand this obligation can create significant liability exposure for a property owner.

Title III of the ADA applies to "public accommodations" (retail, service, and other businesses) and "commercial facilities" (office buildings, warehouses, factories, etc.) operated by private entities, including owners or landlords. A landlord, as an owner of a place of "public accommodation," has an independent obligation to comply with the ADA that cannot be discharged by contradictory provisions in a contract with a tenant.

What Does Title III of the ADA Require?

As to public accommodations, the requirements of Title III can be broken down into three general requirements:

1. Existing Facilities. For existing facilities, Title III of the ADA requires that public accommodations remove "architectural barriers" and "communication barriers" that are structural in nature in existing facilities when it is "readily achievable" to do so.

• Readily Achievable. Removal is "readily achievable" when it is "easily accomplishable" and able to be carried out "without much difficulty or expense." Examples of barrier removal may include things such as installing a ramp, widening a door, modifying a restroom, or rearranging furniture and display racks to permit access to wheelchair users.
• Maximum Extent Feasible. Compliance with the ADA is not all or nothing. ADA compliance is to be carried out to the "maximum extent feasible." For example, when barrier removal is not readily achievable, alternatives may include in-store assistance for removing articles from inaccessible shelves or providing curb service or home delivery.
• Good Faith. In an ADA lawsuit, the court will consider a landlord's "good faith" efforts to comply with the ADA, such as its attempts to remove the barriers.

2. New Construction and "Alterations" in Existing Facilities. Title III imposes technical requirements on both new construction and alterations to existing buildings.

• The ADA requires that new construction of places of public accommodation and "commercial facilities" be accessible for persons with disabilities.
• Any "alterations" to an existing building that could affect the usability of the facility also triggers the technical requirements of the ADA (such as a "path of travel" to "primary function areas," such as lobbies). Such alterations must be made in an accessible manner to the maximum extent feasible.

3. Provision of Auxiliary Aids and Services. Title III requires public accommodations to provide auxiliary aids and services to the disabled (such as interpreters or notetakers for those with hearing impairments, or Braille or large print materials for those with visual impairments, etc.) to the maximum extent feasible without causing an undue burden.

Allocation of Responsibility

Most commercial leases contain a provision allocating the risk and cost of compliance with laws to the Tenant. Landlords and tenants may allocate –between themselves –responsibility for complying with ADA's requirements and liability for violations in the Lease. However, any allocation in the lease is effective as between the parties only. Contractual allocation of responsibility has no effect on the rights of third parties bringing ADA claims.

Allocation in the lease is important as it may be the basis for the landlord to pursue an indemnification claim against the tenant. Such provisions may also require the tenant to provide the landlord with legal counsel in the even the landlord is the subject of an ADA lawsuit. However, it does not release the landlord from responsibility under the ADA.

Landlord's Obligations Not Limited to Compliance in Common Areas

Further, tenants are not liable for ADA violations that occur in areas exclusively under the control of the landlord. For example, in many circumstances, the tenant is not held liable for ADA violations in the parking lot or violations in the landlord's business office that is open to the public. But a landlord, as the owner of the property, can be held liable for ADA compliance on property leased to, and controlled by, a tenant. So, if the tenant operates a restaurant, the landlord may be held liable for ADA violations in the restaurant. Thus, the landlord, as the property owner, has potential ADA public accommodation liability for the entire property – including the common areas and any property that is occupied by a tenant.

Relief Available to Plaintiff: Injunctions, Monetary Damages and Attorney Fees

The ADA may be enforced by lawsuits brought by either private individuals – persons with disabilities –or by the U.S. Attorney General. Generally, an ADA plaintiff may sue the landlord, tenant, or both in an ADA lawsuit. In most states, private plaintiffs cannot obtain monetary damages under Title III; only injunctive relief is available. However, many state laws, such as the California Unruh Civil Rights Act, provide a vehicle for a plaintiff to obtain monetary damages even though such damages are not allowed under the ADA.

Alternatively, the US Attorney General may file an action if it has reasonable cause to believe that there is a pattern or practice of discrimination that violates the ADA. Actions filed by the US Attorney General can result in significant fines.

Attorney fees are available to a plaintiff who prevails on his or her claims under the ADA, but a prevailing landlord or other defendant in an ADA lawsuit generally cannot recover fees absent a showing that the action was "frivolous, unreasonable, or without foundation."

Best Practices for Landlords

Due to the extensive reach of the ADA, landlords have a strong incentive to monitor a tenant's compliance on the leased property. Favorable provisions that landlords should negotiate into any lease include:

• Obligation that tenants comply with ADA (as between landlord and tenant)
• Requirement for tenants to indemnify landlord for the costs of compliance
• Requirement for tenants to maintain insurance that will cover ADA claims and defend such claims on behalf of landlord. If ADA claims are asserted against only landlord, in most situations, landlord should implead tenant as a necessary and indispensable party
• Requirement that the landlord have the right to select defense counsel even if the expense of such counsel is paid by the tenant

If the landlord is served with an ADA lawsuit, a comprehensive ADA evaluation should be performed by an ADA expert and repairs should be performed as soon as possible. Once repairs are completed, the landlord may be able to file a motion for dismissal because the claims are moot.