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?
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 includes 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.
The ASTM appendix provides three tiers of due diligence, and the depth of the investigation is dictated by the user of the PCA.
The Tier I Accessibility Survey is a visual assessment of:
- The path of travel, to identify physical barriers;
- Opining on the adequacy of the reported number of ADA-compliant parking spaces (no measurement or counting required);
- Determining if the public toilets appear to have been designed and constructed to provide accessibility features (stalls, low sinks with clearance, and strobe and horn fire alarm systems);
- Determining if the reported number of ADA-compliant guestrooms are present, and if they appear to have been designed and constructed to provide accessibility features;
- Indentifying if the elevators have the following: call buttons with visual signals (pretty uncommon to see one that doesn’t); Braille and raised numbers on the interior controls; emergency controls at the bottom of the control panel; interior floor buttons that provide visual signals (again, pretty uncommon to see one that doesn’t); visual and auditory signals at each floor; doors with a reopening device; and an emergency two-way communication system that does not require voice communication.
A Tier II Accessibility Survey is more comprehensive and consists of performing some additional observations to complete a checklist contained within the ASTM standard. Completing the checklist requires some basic measurements and counts of: parking spaces; ramp slopes, lengths, landings and handrails; doorway widths, spacing and operation; visual evaluation of the path of travel and property signage; elevator controls and signals; toilet rooms and fixtures; and accessible guestrooms.
A Tier III Accessibility Survey is the most comprehensive survey and involves measuring or counting each accessibility feature.
Though the ADAAG (ADA Accessibility Guide) is referenced in the Standard’s language, these three tiers of investigation would pertain regardless of the applicable code (such as a state or municipal accessibility code).
These surveys are often completed independently of the Property Condition Report, but the same general principals apply. Our lender clients often request a Tier 1 or 2 ADA Survey, whereas property investors will often require the Tier 3 Survey as they will be responsible for any alterations needed to become compliant, and will also have the most exposure to liability.
Next up in this blog series, we’ll take a further look at which accessibility codes beyond ADA may apply.