10/18/2012 07:09:00 AM EST
Landlords: ADA Obligations Cannot Be Leased Away
Public Places Must Comply with
ADA's Accessibility Requirements
The Americans with Disabilities
Act (ADA) - 42 U.S.C. § 12181 et seq. - imposes requirements for places
of public accommodation with the intent of providing reasonable access to
persons with disabilities. For example, failure to remove "architectural
barriers" may constitute discrimination under the ADA. Violation of the ADA may
result in an injunction requiring a property to be altered to make it readily
accessible to and usable by persons with disabilities and, although damages are
not awarded, the prevailing plaintiff may recover reasonable attorneys' fees.
In Hoewischer v. Terry, 2011 U.S. Dist. LEXIS 130330 (M.D. Fla.,
November 10, 2011) [enhanced version available to lexis.com subscribers] a shopping center patron brought suit under the ADA claiming
the shopping center owned by the defendant failed to provide reasonable access
to individuals with disabilities.
Compliance was Lease Obligation of Tenants
The shopping center's landlord
presented the affirmative defense that leases between him, as landlord, and his
tenants, who were not parties to the ADA litigation, provided that compliance
with the ADA was the lease obligation of the tenants and, therefore, only the
tenants could be liable for the alleged ADA violations in the landlord's
Conclusion: ADA Makes
Landlord Individually Responsible
The federal court, however,
granted the plaintiff summary judgment on the affirmative defense, and held
that the ADA makes both the landlord and tenant of a place of public
accommodation individually responsible for any violations on the leased
property and while they may use the terms of their lease to allocate costs
associated with the ADA between themselves, a lease cannot relieve the landlord
of the underlying obligations under the ADA. The court added that the landlord
could, in either the ADA enforcement suit or separately, seek to enforce any
lease terms that allocated responsibility for ADA compliance.
Related issues are addressed by Douglas Scott MacGregor
in the treatise Florida Commercial Landlord-Tenant Law (Lexis).
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