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February 13, 2007

Connection Waiting for an ADA   Claim

James M. Roth, Esq., The Roth Law Firm


The Americans with Disabilities Act imposes   accessibility requirements upon all buildings that are open to the public.   Interpretive regulations are issued by the United States Access Board in the   form of the ADA Access Guidelines for Buildings and Facilities (“ADAAG”), which   set minimum standards for accessibility requirements. California also imposes   minimum accessibility requirements (which can be more, but not less stringent than ADAAG) via its building code.

​The purpose of this article is to identify   general California and federal statutory, administrative and decisional law for   demonstrative purposes only. The reader is cautioned to verify the applicable   federal and/or state law as it may apply to the reader's specific facts and   circumstances. The opinions and comments contained herein are intended to inform   and educate. Although this article does not contain all possible scenarios which   may affect the reader, it is intended to provide general information that may be helpful as a starting point in addressing ADA issues and concerns.

​It’s a fair statement that the vast majority of business buildings contain over 20 violations of accessibility requirements,   whether they are new or old. Obviously, many older buildings constructed before   these requirements were imposed are non-compliant. But most new buildings are   also non-compliant in many areas, for several reasons: (1) The sheer number and   complexity of accessibility regulations means that no architect, contractor or   even inspector is familiar enough with all of them to ensure that a new building   is fully compliant, (2) many accessibility issues require constant maintenance, such as the requirement regarding the permissible amount of force that may be   used to open a door, and (3) many accessibility issues relate to   non-construction items, such as the placement and design of tables, chairs, and other furniture. Many attempts at reform have been tried at the state and   federal levels, but without any measurable success.

​If your place of business is non-compliant, you may be sued for statutory penalties and injunctive relief. Because   inaccessibility is viewed as discrimination, there are a host of statutory penalties that arise under both state and federal law. The law also provides for treble (i.e., three times) the actual damages and attorneys’ fees. Typically,   however, these cases are settled for an agreement to undertake some improvements, pay to the claimant and his/her attorney an agreed upon amount for damages and attorney’s fees. While the law provides the business owner with a   claim that the required changes would cause and result in a hardship, such a claim is usually not a complete defense. Rather, it should be taken into consideration when determining what changes need to be undertaken.

Insurance coverage is generally not available because there is no real “occurrence” as required by the police for coverage to apply. However, insurance companies are now offering endorsements for such claims. The reader is encouraged to contact their insurance representative to determine if availability of such coverage.

​Complaints under the ADA typically arise in the   context of the Landlord/Tenant and the Buyer/Seller relationships.

Landlord/Tenant Liability

Claimants typically sue both landlords and   tenants. And both landlords and tenants are liable to the Claimant, although, depending on the wording of the lease, they may be entitled to indemnity from each other. A tenant’s general lease requirement to “comply with all applicable laws” does not, standing alone, shift the burden to the tenant of complying with   those disabled access laws requiring curative actions of a substantial nature.  The courts consider the following factors in deciding whether the tenant may seek indemnity from the landlord, or vice versa (Brown v. Green (1994) 8 Cal.4th   812, 829-834):

The relationship of the cost of the curative action to the rent payable over the life of the lease;
The term of the lease;
The relationship between the benefit of the repair to the tenant versus the benefit to the landlord;
Whether the curative action is structural or nonstructural;
The degree to which the tenant’s enjoyment of the premises will be impeded while the curative action is
being undertaken; and
The likelihood the parties contemplated the application of the particular law or order involved when they
entered into their lease.



Buyer/Seller Liability

If a lawsuit is filed based on a visit to the property that occurred before the sale of the property, there will be an   issue as to whether the buyer or seller is responsible for handling the   complaint. Unless spelled out in the purchase agreement, the answer is unclear.

If the case is viewed as a tort action, similar to a “slip-and-fall” premises liability case, then as between the buyer and seller, the seller is more likely to be liable, as the owner of the property   at the time the plaintiff entered the premises. Obviously, the buyer had no control over the premises at that time. But if the lawsuit is viewed as   petitioning the court to order repairs to the property, it will likely be the   buyer’s responsibility. He or she accepted the property “as is,” after an inspection, and accordingly, it is his responsibility to undertake any needed   repairs to the building.

Hypothetically speaking

You own a restaurant in a shopping center.   The plaintiff arrives in a wheelchair one day. A few months later, you and your landlord are sued for the following violations:

There is no “Van-Accessible” sign in front of your disabled parking space, even though it is clearly
identified as a handicapped parking spot.
The stripes for the disabled parking spaces are one foot too short.
The amount of pressure required to open the front door is too great.
The tables do not have the required leg room underneath.
The sink in the bathroom is ten inches too high.
The hot water pipes for the bathroom sink are not insulated.
The towel dispenser is one inch too high.
The height of the threshold at the entrance to the restaurant is half an inch too high.


The bad news:
You will probably have to fix all of these problems and pay a small sum to the plaintiff.

The good news:
You will probably be able to convince your landlord to chip in for the parking-related problems.

These are examples of common problems for landlords, tenants, buyers and sellers of commercial real property. If you have any questions or concerns regarding your potential exposure to ADA claims, you should immediately consult an attorney in an effort to protect your rights and remedies.

​Representing a broad spectrum of clients ranging from large corporations to small businesses and individuals, Jim Roth has been involved in matters ranging from simple negotiations to complex litigation involving multi-million dollar exposure. His firm concentrates its practice in the areas of real estate, business and corporate matters from negotiations to litigation.


The Sun Country Connecton