Who’s responsible for ADA compliance—landlords or tenants?

This article was originally published at allbusiness.com and is being used here as an example only.

CONSIDERABLE MISUNDERSTANDING HAS ARISEN between commercial landlords and tenants about the responsibility of each for compliance with laws—as well as the defense and settlement of lawsuits—relating to access for the disabled, under terms of many common commercial leases.

Misconceptions about the obligations of commercial tenants under many standard commercial “triple net” and other leases have caused many firms to close, dismiss employees, or file bankruptcy—in many cases unnecessarily.

This article concludes that (1) in most cases, neither landlords nor tenants will be able to state, as a matter of law, that they are relieved from their responsibility to provide access for the disabled, and (2) the standardized terms of many—if not all—common commercial leases most likely will not, in themselves, be sufficient to transfer this obligation from one to the other. For these reasons, commercial landlords, tenants and others may well be indispensable parties in ADA (the Americans with Disabilities Act of 1990, 42 USC [section]12101) and access lawsuits, and leases should be immediately revised to clearly confirm responsibility for compliance with access laws.

1. WHAT CAN HAPPEN IF AN ESSENTIAL PARTY IS NOT INCLUDED IN AN ACCESS LAWSUIT

Many have suggested that a major part of the current crisis of ADA/access lawsuits is the misunderstanding between landlords and tenants as to which of them is responsible for complying with access laws or defending lawsuits involving them. Many tenants have mistakenly undertaken the defense of lawsuits, and even made major structural renovations, because they incorrectly believed that their leases required it; others just started defending lawsuits because they happened to be sued. Some landlords have also taken on obligations that should have been borne by (or at least shared with) their commercial tenants.