Legal Briefs

Understanding Equal-Access Requirements

When considering requirements relating to accessibility for the disabled, commercial property owners, managers, and developers must keep in mind two separate federal bodies of law: the Americans with Disabilities Act and the Fair Housing Act. Although both federal acts address construction standards with respect to access for the disabled, the ADA applies to public accommodations, whereas the FHA applies to all types of residential properties, including multifamily buildings.

In some instances, however, the ADA and the FHA, together with the cases decided under them, must be considered in connection with an individual project. For example, the developer of a multifamily project must take into consideration not only the accessibility issues raised by the ADA in connection with the developer’s sales office, model units, front sidewalk, and other areas used by customers or clients, but also the accessibility issues raised by the FHA in connection with the construction and leasing of the residential units. Here is a reminder on how both acts affect commercial properties.

Americans with Disabilities Act
The ADA applies to public accommodations, which are defined to include, among other things, hotels, motels, restaurants, theaters, stadiums, auditoriums, shopping centers, banks, dry cleaners, gas stations, accountants’ and lawyers’ offices, hospitals, schools, gymnasiums, and golf courses.

With respect to such properties, the ADA provides that no individual shall be discriminated against because of a disability in the full and equal enjoyment of those properties by the owner, lessor, lessee, or operator. This general prohibition applies to the construction and alteration of public properties and commercial facilities in two ways.

First, facilities occupied after January 26, 1992, must be designed and constructed to be readily accessible to and usable by individuals with disabilities — except when an owner can demonstrate that it is structurally impractical to meet those requirements. Second, a failure to make alterations to a facility or portion of a facility that would allow accessibility by disabled individuals is prohibited discrimination. The ADA, however, specifically provides that elevators need not be installed for facilities (other than shopping centers, malls, or professional offices of health-care providers) that are fewer than three stories or have fewer than 3,000 sf per story.

In practice, this means that the owner, lessor, lessee, or operator of a public accommodation must remove architectural barriers in existing facilities when such removal easily can be accomplished and carried out without much difficulty or expense. Determining whether modifications required under the ADA are reasonable involves fact-specific, case-by-case inquiries considering, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the owner, lessor, lessee, or operator to implement the modification.

Examples of steps to remove barriers include, but are not limited to: installing ramps; making curb cuts in sidewalks and entrances; rearranging tables, chairs, vending machines, display racks, and other furniture; repositioning telephones; adding raised markings on elevator control buttons; installing flashing alarm lights; widening doors; eliminating turnstiles or providing alternative accessible paths; installing grab bars in toilet stalls; re-arranging toilet partitions to increase maneuvering space; insulating lavatory pipes under sinks to prevent burns; installing raised toilet seats; installing full-length bathroom mirrors; repositioning bathroom paper towel dispensers; creating designated accessible parking spaces; installing accessible paper cup dispensers at existing inaccessible water fountains; and removing high-pile, low-density carpeting.

The federal regulations implementing the ADA encourage owners to take the foregoing remedial steps in accordance with the following priorities. First, property owners and managers should take measures to provide access to public places from public sidewalks, parking, or public transportation. These measures include making changes such as installing entrance ramps, widening entrances, and providing accessible parking spaces.

Second, property owners and managers should take measures to provide access to those areas where goods and services are made available to the public. These measures include adjusting the layout of display racks, rearranging tables, providing Braille and raised character signs, widening doors, providing visual alarms, and installing ramps.

Third, property owners and managers should take measures to provide equal access to restroom facilities. Measures include removing obstructing furniture or vending machines, widening doors, installing ramps, providing accessible signage, widening toilet stalls, and installing grab bars. Fourth, a public property should take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations available to the public.

Fair Housing Act
The FHA was amended in 1988 to prohibit discrimination based on a disability. The amended act provides that it is unlawful to discriminate in the sale or rental or otherwise to make unavailable or deny a dwelling to any buyer or renter in three scenarios: on the basis of a disability of the buyer or renter; on the basis of a disability of a person residing in or intending to reside in the dwelling after it is sold or rented; and on the basis of a disability of any other person associated with the buyer or renter. However, owners of three or fewer homes generally are excluded from the restrictions that are set forth in the act.

Specifically, the act prohibits owners from refusing to allow, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by that person if the modifications are necessary to allow full enjoyment of the premises. In the case of a renter, the act allows the landlord, if it is reasonable to do so, to authorize modification on the condition that the renter restore the interior of the premises to the condition that existed prior to the modification, reasonable wear and tear excepted.

The FHA also sets forth specific requirements for the design and construction of "covered multifamily dwellings," which are defined as buildings consisting of four or more units with one or more elevators and ground floor units in other buildings consisting of four or more units.

In particular, since March 13, 1991, newly constructed multifamily dwellings have been required to include certain special access and design features prior to occupancy. These requirements include that the public use and common use portions of such dwellings must be readily accessible to and usable by disabled persons, all doors must be designed to allow passage into the dwelling, and all doors within the dwelling must be sufficiently wide to allow passage by persons in wheelchairs.

Finally, all premises within such dwellings must contain an accessible route into and through the dwelling; light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; reinforcements in bathroom walls to allow later installation of grab bars; and usable kitchens and bathrooms that allow individuals in wheelchairs to maneuver about the space.

In addition to the federal requirements established by the FHA and the ADA, property owners should be aware that state and local governments are allowed to enact — and in certain cases have enacted — standards providing for greater access for disabled persons. Property owners should check with their local planning departments, engineers, or lawyers to determine whether more stringent state and local laws exist.

Samuel H. Weissbard, JD, and Camellia K. Schuk, JD

Samuel H. Weissbard, JD, is senior counsel and Camellia K. Schuk, JD, is an associate in the Irvine, Calif., office of Cox, Castle, & Nicholson, LLP. Contact them at (949) 260-4600 or sweissbard@ccnlaw.com and cschuk@ccnlaw.com.The discussion of legal issues in this column is for informational purposes only. Results may vary depending on state laws and individual circumstances.

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