ADA compliance – is the landlord or tenant responsible?  Are there areas of shared responsibility?

The Americans with Disabilities Act (ADA) prohibits any private entity who owns, leases – or leases to, or operates a place of public accommodation from discriminating against a person with a disability. Both the landlord and tenant have the responsibility for compliance with the ADA. They may choose to allocate these responsibilities between them through a lease or other contract. This allocation is only effective between the parties – both landlord and tenant remain fully liable for complying with the requirements of the ADA.

Problems with Allocation of ADA Responsibility between Tenant and Landlord  

Consider the example of a tenant operating a place of public accommodation as part of  a larger place of public accommodation – such as a restaurant within a strip mall. The lease may describe the rented space as including the area within the four walls of the restaurant while defining the common areas as including the site improvements such as parking lots and sidewalks. In such an example, the lease may allocate responsibility to the tenant for the interior space only, while specifying that the common elements are the responsibility of the landlord. While this allocation of responsibility may seem fairly clear, site specific facts may make matters more complicated.

Operations of Tenant

In this example, the tenant might argue that it had no responsibility for barriers to the exterior path of travel. However, what if the tenant regularly placed merchandise or an advertising feature on the sidewalk blocking the exterior accessible path of travel? Is that a tenant problem or a landlord problem? The lines of responsibility get blurry. On one hand, the tenant took an action that could block access to goods and services. On the other hand, the landlord had a responsibility for the entire property.

Alterations by Tenant

When alterations or renovations are made to the tenant space, the altered space must be constructed in accordance with the Americans With Disabilities Accessibility Guidelines (ADAAG). In many jurisdictions, such alterations require obtaining of a construction permit and passing inspections performed by local officials.

The scope of such alteration projects must also include removal of barriers in the accessible route from the building entrance to the altered space. The cost of these accessibility improvements is not required to exceed 20% of the cost of the basic alteration. If the accessible path of travel is already ADA compliant, no additional improvements will be required.

Sometimes, the accessible route within the tenant space complies with the regulations but barriers exist on the exterior route of travel. Alterations to the tenant space do not necessarily trigger path of travel improvements outside of tenant space. Removal of these barriers within the common areas of a place of public accommodation is likely to remain with the landlord.

Who gets sued for violations of the ADA?

In my experience, both the landlord and tenant may be sued by a disabled individual who has been deprived of access to a place of public accommodation. It it prudent for landlords, property managers and tenants to work together to identify barriers to access and create a plan for their removal.

The information provided in this article is based upon my review of the Americans with Disabilities Act, The 2010 Accessibility Guidelines, the Americans with Disabilities Act Title III Regulations.  And the Title III Technical Assistance Manual. It describes what I have found to be the most common issues encountered during my ADA investigations. For a more complete review of the Americans with Disabilities Act (ADA) please refer to the law, regulations and standards referenced, herein.

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