On Sunday, the Americans with Disabilities Act (ADA) celebrated a milestone anniversary, having been signed into law 25 years earlier by by President George H.W. Bush to prohibit discrimination based on disability.
Today, the landmark law continues to be the principal regulation governing accessibility to real estate. Although there are additional rules relating to accessibility, including the Federal Fair Housing Act (FHA), lesser known guidelines such as the Architectural Barriers Act, and local regulations like the California Title 24 and Texas Accessibility Standards, ADA is by far the most wide-ranging of all. Yet, 25 years after its adoption, questions surrounding its applicability and obligations remain. Let’s take a closer look at this landmark a civil rights legislation intended to improve access to “public accommodations” and “commercial facilities”, and your options for ensuring compliance.
ADA’s Impact on Commercial Real Estate
Though residential properties are exempt from ADA requirements, the leasing office and any other facilities used by the public at multifamily properties do not benefit from the exemption. The most recent enforceable standards for compliance are the 2010 ADA Standards for Accessible Design (2010 Standards), which set minimum requirements for newly-designed or altered facilities.
As defined by the Act, ADA extends to virtually all commercial and public real estate. If you own or lease offices, schools, retail malls, hotels, etc. you may be subject to a lawsuit to correct deficiencies at any time (for more on that, see here). So, with that said, how can you make sure your property is in compliance with the applicable accessibility laws?
Assessing Compliance with Accessibility Reviews
An Accessibility Review is an evaluation of a property’s compliance with applicable federal, state, and local accessibility regulations. There is no nationally recognized standard for accessibility review, though significant guidance is available. Property Condition Assessments (PCAs) completed in connection with acquisition or financing of real estate frequently provide some level of screening for ADA compliance. The ASTM standard governing PCAs describes three tiers of assessment:
Tier I – A limited screening based on observation of the following components, without measurement or counting of elements to confirm compliance of:
- path of travel;
- number of accessible-designated parking spaces;
- provision for accessibility in public toilet rooms;
- the reported number of accessible guestrooms (for transient lodging facilities); and,
- elevator call buttons, visual and auditory signals, Braille and raised alpha-numeric designators, reopening devices and non-vocal emergency communication devices.
Tier II – A similar screening of the same elements, but including representative measurement and counts of items included in a provided checklist.
Tier III – An undefined scope of work which exceeds the Tier II guidance. Tier III is intended to be developed on a site-specific basis by an accessibility specialist.
The Tiered approach to assessment as part of the PCA is expected to be eliminated this year when ASTM 2018 is recertified, though the basic concept of a screening approach remains valid. Since 2008, many PCA consultants have conducted a “Tier 1.5”, completing the Tier II checklist, but without measurements or counts. The screening is intended to identify gross areas of non-compliance, but will not provide a strict evaluation of compliance, identify work that should be completed in connection with rehab of the property, or evaluate compliance with other requirements.
However, ADA lawsuits can be based on seemingly minor deficiencies, such as a ½” distance or 1% slope of noncompliance. Because of that, it is virtually impossible to visually assess small slopes or dimensions without measuring, and even representative measurements will not assure complete compliance of the facility. If identifying accessibility issues is the primary concern, then a more detailed accessibility survey is necessary. This type of survey is typically engaged by property or business owners or buyers with lower risk tolerance. Generally, this assessment will identify all noncompliant elements of the property, with any areas that could not be accessed noted in the report. Once the report has been completed, a compliance plan can be developed to reflect priorities and costs at the property under investigation.
Sweat the Small Stuff
Cost- and time-efficiency are a critical consideration in every real estate transaction, and there may be times when low risk levels justify reliance on a simple accessibility screen. However, if the screen reveals a multiple areas of (possible) non-compliance, a more detailed survey may be appropriate. Generally speaking, the more comprehensive the review, the better protected you are against lawsuits. In order to ensure compliance and project against liability as efficiently as possible, make sure you have an understanding of what it will take to bring your property into full compliance. The devil is in the details when it comes to making sure you’re not caught off guard if someone sues you for an issue that you didn’t even know existed!