Landlords: ADA Obligations Cannot Be Leased Away

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.

Landlord's Defense:  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 shopping center.

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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