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Accessibility Surveys During Due Diligence

How do accessibility concerns come into play during due diligence?

How do accessibility concerns come into play during real estate transactions or development? The answer is tri-fold:

  1. New buildings are required to be designed and constructed with accessibility features
  2. Alterations to places of public accommodation and commercial facilities are required to incorporate accessibility features and
  3. A property owner and/or lender could be sued if a property isn’t accessible.

New buildings should always be designed to be compliant with the current federal and local codes, but how do you evaluate an existing building?

Accessibility Surveys

A good way to do this is with an Accessibility Survey or Review, often referred to as an "ADA Survey" (though this term doesn't reflect the various other accessibility codes that might also apply to the property). An Accessibility Survey generally evaluates: paths of travel; ADA-compliant parking spaces; accessible design of restrooms and guestrooms; property and elevator signage and the use of visual, Braille and auditory signals; and other accessibility features.

Accessibility Surveys in Property Condition Reports

Partner normally inclues a Tier I ADA Survey or Accessibility Review during physical due diligence of an existing building. Comments are included in the Property Condition Report, which looks at the overall physical condition of a property, and short- and long-term capital expenditures required to maintain the property. An Accessibility Review is technically out of scope for a Property Condition Report, it is an add-on item so you may need to specifically ask that it be included.

The Property Condition Report scope is defined by ASTM standard E2018 "Standard Guide for Property Condition Assessments: Baseline Property Condition Assessment Process." This standard includes an appendix defining the levels of an accessibility investigation. The standard references the Americans with Disability Act as the governing document, however, states, counties and municipalities can have differing governing codes, most of which are adopted from national model codes.

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