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Don't be a defendant in ADA litigation

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In the past two years our office has seen a significant increase in alleged Americans with Disabilities Act (ADA) violations, which have been pursued by way of lawsuits or complaints with investigative agencies against property owners and managers.

These claims generally allege a failure to comply with the ADA and/or Title 24 of the California Code of Regulations, which implements the California disability access laws. This article will provide two basic recommendations for avoiding problems and will identify a great general resource for helpful information.

For commercial property alleged to be in violation of the ADA, a lawsuit is typically filed in federal court seeking monetary damages in the form of statutory minimum damages or actual damages. The plaintiff generally also seeks to be reimbursed for costs, including attorney fees, and usually seeks an injunction to halt the conduct alleged to be in violation of the ADA.

To protect yourself from this type of litigation, we recommend that, to minimize your exposure, you be proactive by having your property inspected, having your lease agreements reviewed and by becoming educated on accessibility issues.

First, prudent commercial property owners and managers should determine if and when their property was inspected for compliance with state and federal access regulations. Don't just assume that your property is in compliance. If your property has not been inspected recently, or you cannot find a written report, arrange for a compliance inspection. Over time, conditions at a property may change and the interpretation of regulations can change. This can result in an inadvertent failure to maintain compliance. This can be as simple as the paint fading in an area established for disabled parking or a disabled parking sign that has been knocked down and not replaced.

An ADA compliance survey is recommended to identify all ADA compliance issues on the entire property. A compliance expert can also help you determine the manner in which compliance issues can be corrected.

Second, check to see if your lease clearly specifies who is responsible for maintaining the property in compliance with all laws, including state and federal access guidelines. Recognize and address those portions of the property that are the landlord's direct responsibility and have the tenant rectify any compliance issues that are the tenant's responsibility. It is important to determine that all compliance obligations have been met.

Finally, the Department of Justice maintains an ADA informational Web site at www.ada.gov, where the public can obtain information and order educational material. Among the information available is a general checklist for inspecting existing facilities. This can help you to inspect and identify readily achievable barriers to access on your property. I suggest you use this for general guidance only and do not rely solely on your own inspection unless you have technical compliance training. You can also order information or obtain answers to questions concerning technical compliance requirements from a technical specialist at (800) 514-0301. Keep in mind, however, that these resources provide guidance for federal regulations, and California regulations will differ in many respects. It is for this reason we recommend using a compliance expert to confirm that your property is compliant with all applicable state and federal regulations.

Kimball, Tirey & St. John specializes in landlord/tenant, collections, business and real estate law, with offices throughout California. This article is informational only and should not be used as legal advice. Check with your attorney before acting. If you have any questions regarding the contents of this article, please call (800) 574-5587.

McMahon is a partner with Kimball, Tirey & St. John

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