Disability Rights and Responsibilities for Commercial Landlords
Is your commercial property accessible for people with physical disabilities?
A surprising number are not. Commercial property lawsuits tied to the Americans with Disabilities Act (ADA) Title III increased by over 37 percent in 2016. All in all there 6,601 lawsuits were filed in federal court relating to properties which were disability unfriendly.
Regardless of whether you’re new to commercial property or have years of experience, it can be a serious mistake to overlook the importance of making your commercial property accessible to people who have physical issues.
Luckily, with a little effort and understanding of the laws regarding disability rights, these nasty lawsuits can be avoided. This article will give you an overview of disability rights and your responsibilities as a landlord, helping you to avoid potential headaches regarding your commercial property.
The Importance of Disability Rights
Disabled tenants and people who access your commercial buildings have substantial rights that you need to be aware of when buying or managing a property.
Local and national laws require that your commercial properties be friendly to the disabled or else you may suffer the consequences. Landlords who fail to meet disability regulations may be sued and may risk being persecuted by the full extent of the law.
If you're doing business or own a commercial property, it is important that you make sure that you understand all the necessary requirements.
In recent decades, many laws have been passed that require you to accommodate people with disabilities for commercial properties. These rules may seem tricky to grasp, but the core concepts are pretty simple. You simply need to make your commercial properties accessible by people who have disabilities.
According to the law, disabled people should have the same rights as everyone else, and the accessibility of certain commercial properties are a big part of this.
These laws have been passed to prevent discrimination towards the disabled, and like other discriminatory laws help to allow disabled people to have the same opportunities as others in the population.
The Americans with Disabilities Act of 1990
When speaking on disability rights, the primary legislation to be aware of regarding the rights of those with disabilities is the federal Americans with Disabilities Act, otherwise known as the ADA.
The law was enacted in 1990 and exists to ensure that no type of discrimination is made towards people with disabilities; especially physical access ones.
The act makes several important provisions for commercial properties and public accommodations. Commercial properties can include any number of facilities that are accessible to the public.
Some examples of these commercial properties may include:
* Retail Stores
* Hotels and Other Types of Lodging
* Movie Theaters
* Private Schools
* Convention Centers
* Doctors’ Offices
* Homeless Shelters
* Funeral Homes
* Day Cares
The ADA has been passed to make sure that businesses will offer adequate accessibility and safety provisions for disabled people.
The U.S. Department of Justice is responsible for enforcing the ADA requirements and do this through complaints, lawsuits, and settlement agreements. Private parties sometimes bring lawsuits under the ADA as well.
Additionally, the attorney general can also file a lawsuit when a pattern of alleged discrimination exists or when there are cases of public importance.
An ADA related lawsuit can cause plenty of headaches and money, so it is best to avoid at all costs. A lawsuit can cause a lot of challenges such as attorney fees and civil penalties as well as plenty of negative publicity.
As a result of an ADA lawsuit, you may have to go through mandatory injunctive relief, which means you will be required to fix the problem by way of a court order.
Also, be aware that since ADA lawsuits don't usually involve physical harm to the plaintiff general liability insurance policies will rarely help with the expenses involved.
While these potential lawsuits may seem a bit scary, the ADA regulations can be easier to deal with than you may think. You simply need to pay attention, know the laws, and stay proactive in trying to accommodate the disabled. Lawsuits are avoidable if you pay attention after purchasing the property or the land to build on, so make sure that you make any necessary accessibility changes before trouble comes up.
While the ADA is the most important legislation to be aware of when working to help with the rights of those with disabilities, there are other laws to be aware of as well.
Aside from the ADA, other laws such as the federal Fair Housing Act (FHA) as well as many similar state and local laws also help to make sure people with mobility disabilities are provided equal access to goods and services, programs, and housing.
Meeting Requirements and Regulations
So, what are the specifics and what do you need to do to make sure your commercial property is compliant?
While much of the ADA makes provisions for eliminating discrimination when it comes to employment and public entities, Title III of the act states regulations and requirements for public accommodations and commercial facilities.
There are a few exceptions, but in most situations, the ADA denotes that businesses and government buildings built for the first occupancy after January 26, 1992, and first occupied after January 26, 1993, must be made accessible for people with disabilities.
The act also provides guidance and regulations which state that service animals should not be denied access to publicly accessed building and commercial properties. Businesses must “allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed.”
As a result, any businesses built for the first occupancy and made accessible after these dates are required to be compliant with the ADA laws and regulations.
Both new constructions and elements of buildings that have been altered after January 26, 1992, are required to comply with ADA standards to the maximum extent possible.
Basically, businesses that are considered “public accommodations” such as restaurants, shopping centers, and office buildings have an obligation to do their best to provide access and accommodation to any person who has a disability.
Accommodations that are made should be considered similar to or equal to accommodation that is available to the general public. Many people are responsible for seeing that these conditions are met, including owners, operators, lessors, and lessees of commercial properties.
The ADA also requires a public accommodation building to remove barriers to the disabled, if doing so is “readily achievable” even if no alterations or renovations are planned.
In addition to buildings that meet the date requirements shown above, older buildings are not exempt from the ADA regulations. For existing facilities, landlords and property owners are required to remove “architectural and communication barriers” that are structural in nature when it is achievable.
Modifications can include the widening of doorways to ensure they are wheelchair accessible, retrofitting restrooms, or adding access ramps.
These changes are necessary when they are considered easy to accomplish without too much difficulty or expense. The standards for these changes depend on the nature of the modifications and the resources that those responsible have for their implementation.
It is important to be aware that the rules and regulations for ADA compliance apply to new builds, renovations, and heritage properties.
Being Held Accountable
Not only the landlords of commercial buildings can be held liable for the implementation of the handicap and disability accommodation additions. Landlords, tenants, and property managers can all face scrutiny for not making the commercial property accessible.
Important to note is that both a tenant and owner of a commercial property can be held accountable under ADA if accommodations aren't reasonably met for the disabled.
As a landlord, you need to make sure that it is clear in the lease who has the responsibility of making a property accessible to the disabled. The responsibility of the necessary changes can and should be negotiated or stated in the lease for the building or property before the beginning of the lease.
You need to be completely clear of the details of any lease you create or sign regarding a space. If dealing with tenants you need to be fully clear about who has the responsibility of making sure that a property is compliant with ADA regulations.
Just remember that even if the tenant is designated as the one responsible for maintaining and repairing a property, the property's owner may still be held liable for noncompliance. This is also important when buying a property in a need of renovation.
Even though there are a lot of things to think about when making sure that you are compliant with the ADA rules and regulations, it can be easier than you think. Below are a few additional tips that will help you wrap your head around your property's ADA compliance.
Tip #1: Do Not Assume ADA Compliance
If you decide to buy a new building, it's important not to assume it is already ADA compliant. Many people are aware of the laws and the need to accommodate the disabled, but others are not.
Even those who know the rules sometimes fail to take the necessary steps to make sure that their property is compliant with the ADA. Be proactive and make sure to discuss and find out for yourself what changes need to be made so that you won't be surprised later on.
Tip #2: Don’t Forget the Lease
Negotiate leases correctly and thoroughly. As a commercial landlord, it is important to be thorough with the creation or signing of any contracts and agreements. You need to be sure that both parties understand their responsibilities when it comes to compliance with disability laws.
Make sure that you know who the lease denotes is responsible for making changes to the property and complying with ADA regulations.
By making sure to work this out beforehand, you will be much more likely to avoid headaches in the long run.
Tip #3: Consider Getting an Inspection
Consider hiring a certified access specialist (CASp). A CASp is a professional that will inspect and evaluate your building or property and determine your needs and current standing for ADA compliance.
These professionals are knowledgeable about the regulations laid out by the ADA and will be able to provide specific guidance on what you need to do to make your property disabled-friendly.
By hiring a CASp who is trained in ADA compliance and allowing them to perform a "Disability Access Inspection,” you will be able to make sure things are in order well before you go to court.
Tip #4: Understand the Types of Disabilities
Be sure that you understand the different types of disabilities. While you may think that a wheelchair ramp is all that you need to be compliant, you're likely overlooking the range of disabilities that exist in the population.
The ADA was written to include many types of disabilities including not only mobility impairments but also:
* Hearing Impairments
* Visual Impairments
* Mental Illness
* Mental Retardation
* Many other conditions
Preparing for blindness doesn't necessarily mean that every written sign or element of your commercial property should also be written in braille, but you are required to make what accommodations you can and do what is “readily achievable.”
While it can seem difficult to adequately prepare for the disabled accessibility needs you may face, it is important to have a plan in place. You should make any changes that you can to accommodate the disabled in the best way possible.
As a landlord or owner of a property you need to be sure you know what your responsibilities are. Be aware that if your space doesn't comply with ADA regulations, you could be held accountable.
Fortunately, there is a lot you can do to avoid a lawsuit. Just make sure that you take the proper precautions while working towards improving your accessibility, and you'll be in good shape.
By following the proper regulations and making attempts to accommodate the mobility impaired and other disabled people you will be able to avoid a lot of unnecessary frustration in the future of your business.
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