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Know the Law: ADA Litigation

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Craig McMahon

Unfortunately, claims against commercial landlords for ADA (Americans with Disabilities Act) and other handicapped access violations continue to be common. Several laws enacted recently may reduce the number of ADA lawsuits or reduce potential property owner defense costs and potential liability. However, to minimize exposure, landlords and property managers must act proactively.

For commercial property, a lawsuit is typically filed in Federal Court seeking money damages. Plaintiffs seek statutory minimum damages, general damages and punitive damages. Plaintiffs are also entitled to cost reimbursement, including attorney’s fees. The plaintiff usually seeks an injunction to halt the conduct that the plaintiff claims violates the ADA.

Careful property owners and managers avoid potential ADA lawsuits by having ADA surveys conducted of their property. An ADA compliance survey by a competent Certified Access Specialist (CASp) is recommended to identify all compliance issues on the property. This expert can also help determine how to correct any deficiencies.

Even if a property was constructed fairly recently, or even if an ADA survey was completed in the past, cautious landlords and property managers should not assume the property is in compliance. ADA compliance may require periodic re-checks and updates. Over time, property conditions may change and the interpretations of regulations can change, resulting in an unintentional violation. Compliance problems can be as simple as fading paint in a disabled parking area or a disabled parking sign knocked down and not replaced. Many people are surprised to learn that even if there has been no new construction at a property since the ADA went into effect (1992), the property owner must still make changes to the property to comply with the ADA.

Property owners and managers should investigate whether the property’s leases requires the tenants to maintain the property in compliance with all laws, including the ADA. We can review leases to ensure the landlord is well-protected. The lease should identify the portions of the property that are the landlord’s direct responsibility and require the tenant to rectify any compliance issues that are the tenant’s responsibility. It is important to verify that the tenant’s obligations have been met. A landlord may be sued and held liable for ADA violation even if the lease assigns responsibility for compliance to the tenant. Stating an ADA violation is the tenant’s fault is not an absolute defense for the landlord.

SB 1608, effective on January 1, 2009, gave California business owners protection against state and federal disability access law violation claims by contracting with a California Certified Access Specialist for an assessment of their premises, and then making changes recommended by the Certified Access Specialist. Premises that comply with federal and state accessibility standards may obtain a certificate of compliance which provides a level of protection against disability access claims.

The law also provides for a state court procedure to encourage early resolution of disability access lawsuits, requires all cities and counties to have a Certified Access Specialist on staff, allows plaintiffs to recover damages only if a violation was personally encountered or access was deterred on a particular occasion, and allows a court to consider reasonable written settlement offers made and rejected in determining reasonable attorney fees to be awarded.

In 2012, California passed legislation (SB 1186) to prohibit plaintiff’s attorneys from sending a letter demand based upon alleged violations of construction accessibility laws demanding money under the ADA or California Building Standards Code. As of July 1, 2013, this law prohibits such initial money demands and requires that the owner of the property be provided, in “plain” language, the basis for the accessibility claims.

It also requires that small businesses and owners of property who receive an approval by a Certified Access Specialist between January 1, 2008 and January 1, 2016 also receive a notification they can apply to have a 60-day period to mitigate damages by making repairs.

It requires that sale documents or a lease for commercial property, executed after July 1, 2013, contain a statement whether the property has undergone an inspection by a CASp. Careful landlords who amend leases after July 1, 2013 should include the CASp inspection disclosure in the lease amendment.

By implementing policies and procedures to ensure compliance with ADA laws, some of the major exposure areas in ADA litigation can be eliminated. If you need a lease review for ADA compliance issues, a referral to a Certified Access Specialist, or assistance with defense against an ADA lawsuit, we are available to help you.

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“Know the Law” is a service for commercial property owners and managers from the law firm of Kimball, Tirey & St. John LLP. This article is informational only and should not be used as legal advice. For more information, please call (619) 231-1422.

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