Get Jump on Fixing ADA Violations

If your tenant agreed to be accountable for any ADA infraction that’s discovered in its space in the future, you could still be on the hook for the same violation. But you can make sure that you find out about the violation while there’s still time for you to correct it if your tenant hasn’t, by requiring the tenant to inform you within 10 days of receiving an ADA notice.

Leases typically make owners responsible for complying with the Americans with Disabilities Act of 1990 (ADA) in common areas and make tenants responsible for compliance in their own spaces. But just shifting the ADA burden onto a tenant for its own space isn’t enough. A tenant also should be required to inform you if it gets any notice of an ADA violation.

Getting prompt notice about ADA violations is important because you could be held responsible for your tenant’s ADA infraction—even though your tenant agreed to be accountable. That’s because a lease clause allocating ADA responsibility isn’t binding on third parties, including the government.

For instance, suppose the federal government notifies your restaurant tenant that it’s investigating a complaint that the restaurant’s water fountain is placed too high to be accessible to wheelchair customers. If the tenant ignores the notice, the government could sue both the tenant and you for something that the lease says is the tenant’s responsibility. And if the government wins damages or penalties, you may have to pay them and seek reimbursement from your tenant—which could take a lot of time and possibly legal bills.

To avoid this risk, use a special lease clause that requires both you and the tenant to alert each other about an ADA violation within 10 days of receiving notice of the violation. This prompt notice lets you respond quickly to avoid getting hit with damages or penalties. If you know about a violation in the tenant’s space, you can demand that the tenant meet its lease obligation to comply with the ADA by correcting the violation. So, in the restaurant example above, you could insist that the tenant lower the water fountain—and then monitor the tenant’s efforts until the complaint gets formally withdrawn.

The clause also benefits tenants because they get notices of any notices of ADA violations given to owners. So tenants aren’t likely to resist including the clause in their leases.

For a Model Lease Clause you can use to get—and give—notice of ADA violations, see “Require Tenant to Inform You Within 10 Days of Receiving ADA Notice,” available to subscribers here.