Tenant Space & ADA Compliance
Both the landlord and the tenant have certain rights and responsibilities when it comes to ADA compliance. In most cases, neither the landlord nor the tenant will be able to legally state that they are relieved from their duty to provide access for the disabled. This is due in part because the standard language in most common commercial leases is not sufficient enough to transfer obligation for making changes and providing services. Common commercial lease terms such as “Tenant is responsible for complying with all applicable laws,” and “Tenant shall indemnify Landlord for all claims arising out of Tenant’s use of property” have not protected landlords from liability with the ADA laws by some courts.
If the tenant is responsible for the build-out, some leases may include a clause that the tenant is responsible for having an ADA inspection completed to ensure that all the interior space such as counter heights, doors, accessible routes, and restrooms are in compliance. Please call (904) 503-9808 today for more information or a request an inspection.
A lease may be written to clearly confirm who will actually make the changes and provide the aids and services, but both parties will remain legally responsible in the eyes of the ADA. It is important to point out that the landlord never loses the obligation to provide access to the property as public policy requires that some party be continuously responsible for health and safety issues for any given property.
Some landlords have tried to argue that the repair and maintain covenant means that the tenant should be required to improve non-complying areas of the property by bringing them to current accessibility standards. In a sense the inaccessible areas are “broken,” and it is the tenant’s obligation to “fix” them, or to make them accessible. This is ambiguous at best and can be countered by other contractual language such as the tenant having to return the property in the same condition or the limitations on tenant’s rights to make structural modifications.
The party who drafts the commercial lease is responsible for any ambiguous language contained in the lease. There is a legal principle that ambiguities in a document will generally be construed against the party who prepared the lease agreement. One reason is that the drafting party is in a better position to provide clarity. The other reason is that the drafting party will always be in a position to more meaningfully negotiate terms. In plain language - matters of uncertainty will most often be construed in the tenant’s favor.
There are also landlords who believe, incorrectly, that their property has been “grandfathered” in and is exempt from ADA accessibility compliance. The term “grandfathered” refers to local building code ONLY and, while a local building authority may not require any modifications to bring a building "up to code" until a renovation or major alteration is done, the ADA requires that a place of public accommodation remove barriers that are readily achievable even when no alterations or renovations are planned. The landlord has no “grandfather” exemptions for the property’s ADA compliance. Likewise, a tenant cannot deem the property “grandfathered” and fail to provide accessible services and aids.
- Update all lease agreement language to include a provision that all tenants obtain an accessibility inspection of their space and submit a copy to the landlord.
- Require all tenant improvement, remodel, or new construction documents to be reviewed by the landlord’s ADA consultant prior to permit submittal with the building department.
- Require all tenants to detail out the total valuation of their project and list the accessible barriers they will remove to meet the 20% additional required by the ADA.
- Landlord has all vacant spaces inspected prior to new tenant move-in to ensure compliance with current standards and to ensure the tenant is leasing a compliant space.
- Landlord has any common area(s) inspected and generates a detailed list of his or her own barriers slated to be removed with estimated costs in case the building department requires items outside of the tenant space be addressed to meet the 20% additional rule.
- Have the landlord warrant in writing that the building complies with the ADA based on an inspection performed.
- If the landlord is making improvements, warrants that the improvements will be paid for by the landlord and will fully comply with pertinent ADA requirements.
- Make certain the cost of bringing common areas (elevators, stairways, doors) into compliance is not passed along to the tenant as part of operating costs.