ADA Lawsuits – Who is Responsible?

By Christy Kim, AIA, CASp, National Technical Director of Accessibility, Partner Engineering and Science, Inc.

In the event of an ADA lawsuit, misunderstandings between landlords and tenants about who is responsible can lead to unnecessary expenses. It is always important to include all potential responsibilities in order to prevent unnecessary costs and/or changes. Tenants might make costly renovations or defend lawsuits they are not liable for, while landlords could also wrongly assume obligations. Both landlords and tenants are generally liable under the ADA, so all responsible parties should be included early to avoid these issues and ensure fair liability distribution.

Misunderstandings Between Landlords and Tenants

• Responsibility Confusion: Often, landlords and tenants are unclear about who is responsible for ADA compliance. This can lead to tenants mistakenly making structural renovations or defending lawsuits they are not liable for, and landlords incorrectly taking on obligations meant for tenants.

Legal and Financial Implications

• Unnecessary Expenses: Failing to involve all necessary parties early in the lawsuit can lead to avoidable costs, as parties may later object to decisions made without their input.
• Shared Liability: Both landlords and tenants are generally liable under the ADA, meaning a plaintiff can sue either or both. If one is sued alone, they might need to bring in the other to share the responsibility, incurring additional legal costs.

Practical Examples

• Structural Changes: A tenant might be obligated to defend a lawsuit but lack the legal right to make necessary structural changes. Conversely, a landlord may need to enforce a restriction (e.g., closing a restroom or parking area) that impacts the tenant’s lease rights, leading to conflicts if the tenant is not involved.

Timing and Strategy

• Early Inclusion: To minimize complications, it is essential to include all potentially responsible parties from the outset, even if some are dismissed later. This helps prevent objections from parties brought in at the last minute and avoids prolonging the lawsuit.
• Plaintiff’s Limitations: Plaintiffs may not know all potential defendants when filing a suit, so they might initially sue only the most apparent party. It’s up to the sued party to identify and involve other responsible parties promptly.

Lease Agreements and Liability

• Joint Responsibility: Landlords and tenants are jointly responsible for access compliance, but they can contractually shift these responsibilities. Such reallocation, however, does not affect third-party claims (e.g., from visitors with disabilities).
• Ambiguous Terms: Leases should be clearly written regarding responsibilities.  Unless a lease clearly states that the tenant must make specific structural improvements, the responsibility typically remains with the landlord.

Grandfather Clauses

• Grandfather Clauses: Many defendants mistakenly believe their properties are exempt from ADA compliance due to their age or lack of renovations. However, the ADA requires ongoing obligation to remove barriers (corrective action) and bring properties into compliance irrespective of property age.

Recommendations

• Clear Agreements: Leases should explicitly outline responsibilities for ADA compliance to avoid disputes. Both landlords and tenants should ensure that their agreements are clear and cover all potential compliance issues.
• Legal Guidance: Consulting with legal professionals when drafting or signing leases can help clarify responsibilities and prevent costly misunderstandings later.

By ensuring all relevant parties are involved early and clearly defining responsibilities in lease agreements, landlords and tenants can better navigate ADA compliance and avoid unnecessary legal and financial repercussions. When in doubt, it is best to seek out appropriate legal counsel as well as an ADA expert such as Christy Kim, CASp.

DISCLAIMER: This article should not be considered to replace legal advice or constitute legal expertise. Materials contained are a matter of opinion and should not be considered otherwise. Please consult legal counsel and/or an ADA expert as appropriate.