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Commercial Landlords -- Beware of ADA Claims

Commercial landlords are usually happy to have a successful tenant. But if you have tenants that are public accommodations under the Americans With Disabilities Act (ADA), you should be aware of your own potential liability under the ADA.

The ADA covers private entities that include restaurants, bars, entertainment centers, stores, offices, and places of education, among others. 42 U.S.C. 12181(7). The ADA requires a public accommodation to remove architectural barriers to participation by disabled patrons if such removal is readily achievable. 42 U.S.C. 12182. Landlords might think that these requirements only apply to their tenants--the people who are actually providing public-accommodation services. While reasonable given the construction latitude that many commercial tenants are given in their leases, the Department of Justice and courts have not taken that position.

Instead, the DOJ has stated that the discrimination provisions of the ADA apply to "any private entity who owns, leases (or leases to), or operates a place of public accommodation." 28 C.F.R. 36.201(a). Indeed, the DOJ specifically states that "[b]oth the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to the requirements of" the ADA and its regulations. 28 C.F.R. 36.201(b). Thus, the DOJ makes commercial landlords a potential target of an ADA lawsuit. Some courts have adopted this stance.

Accordingly, landlords should provide for tenant compliance with the ADA and indemnification for lawsuits under the ADA in their agreements with their commercial tenants. The DOJ allows for this specifically: "As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract." 28 C.F.R. 36.201(b).

It is to your benefit to plan for the worst and hope for the best--set out the requirements and responsibilities between the parties at the outset and protect yourself.

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