Require Tenants to Notify You of Alleged ADA Violations

Simply requiring tenants to comply with the ADA isn’t enough.

Commercial leases should include language requiring both the landlord and tenant to comply with the Americans with Disabilities Act (ADA). The standard allocation of responsibility: The landlord must ensure ADA compliance within the common areas, and the tenant is responsible for compliance within its own leased space. However, the mere obligation of the tenant to comply isn’t enough to protect the landlord against potential ADA liability, warns a south Florida attorney. The lease should also require the tenant to notify the landlord of any notice of an ADA violation relating to the space that it receives.

Why Landlords Need Notification

The reason landlords need to know about the ADA violation notices their tenants receive is that they may be held legally responsible for those infractions. This is true even if the lease purports to assign responsibility to the tenant.

“A lease clause allocating responsibility for ADA compliance isn’t binding on third parties, including the government,” the attorney explains. She cites the example of a situation in which the federal government notifies a restaurant tenant that it’s investigating a complaint about the restaurant’s restrooms not being accessible to persons in wheelchairs. If the tenant ignores the notice, the government could end up suing both the tenant and landlord for the violation, regardless of who the lease says is responsible for ensuring ADA compliance in the restrooms. Result: The landlord could be hit with fines and other penalties, as well as orders to make construction alterations or improvements to remedy the violation.

Require 10 Days’ Notice

To guard against this risk, you should include a clause in your lease that expressly requires both you and the tenant to furnish prompt notification of any notices of alleged ADA violations each of you receive. Our Model Lease Clause calls for notification within 10 days of receiving the noncompliance notice, which the Florida attorney says should be ample time to respond and take the steps necessary to limit your liability risks. “If you know about the alleged violation in the tenant’s space, you can demand that the tenant meet its lease obligation to comply with the ADA by taking necessary corrective actions,” for example, by making the restrooms wheelchair accessible in the example above.

The obligation should also run in the other direction. “Prompt notification also benefits the tenant in case the landlord is on the receiving end of the alleged noncompliance notice,” explains the attorney.

Establish ADA Violation Notification Triggers

The lease clause should also list what triggers the duty to notify the other party of an alleged ADA violation, including when either party gets:

• Notice from an individual claiming that a certain part of the property or the tenant’s space violates the ADA;
• Notice from the federal government (typically the U.S. Department of Justice) that it’s investigating a potential ADA violation, either on its own or in response to a complaint;
• Notice from an individual or the government threatening a lawsuit or other legal action against you or the tenant for an alleged ADA violation involving the property or leased premises; or
• Notice that the government or an individual has actually filed a lawsuit or initiated another legal action for such an alleged ADA violation.