The federal American With Disabilities Act (“ADA”) outlaws discrimination based on disability in “places of public accommodation.” See 42 USC § 12181, et seq. “Public accommodation” has a broad meaning and includes pretty much any commercial space. Suppose you are negotiating a commercial lease, among many other issues. In that case, it is essential to conduct proper ADA compliance due diligence concerning whether the space you are leasing is ADA accessible AND whether alterations to the existing space are either required and feasible and readily achievable. Both landlords and commercial tenants have responsibilities under the ADA, and both can be held liable in civil courts for violations of the ADA.
The first due diligence step is to examine the potential space for ADA compliance. Take, for example, a proposed commercial space intended for a restaurant. Restaurants must be ADA-compliant. Before signing a lease, physical and structural issues to consider include the following:
- Width of doors — entry and exit doors and interior doors through which a customer might need to pass (such as doors to bathrooms)
- Designated parking spaces (if applicable and if the tenant will have control over and responsibility for parking areas)
- Ramps, elevators, and other accommodations for ingress and egress and for moving within the restaurant
- Handrails and extra wide bathroom stalls
- Aisle and path widths
- Fixed obstructions and restrictions that impair movement within the space
- Heights and widths of selected counters, bars, shelving, display cases, and other non-movable fixtures
If the space appears to have ADA deficiencies, then negotiations should be attempted with respect to a remediation plan, the allocation of responsibilities for making the alterations, and how the remediation costs are to be paid. If the tenant is already expected to make alterations to the space (and to pay for them), then, generally, the tenant will be expected to bring the space into ADA compliance. The converse is true if the landlord is making or disallowing alterations.
Even if the space appears to be ADA-compliant, the lease should still include ADA-related provisions. Examples include the following:
Representations and Warranties
It is always useful for a tenant to get a representation and warranty from the landlord that the space is ADA-compliant. Landlords often expect a representation and warranty from the tenant that any alterations to the space will be ADA-compliant and that the tenant will otherwise comply with the ADA. For a restaurant, this might entail accommodations for the visually impaired, like Braille signage and large-print menus.
Future ADA Compliance
It is always possible that, during the lease, it may be determined that the space is ADA non-compliant. Depending on the lease structure, the landlord and tenant may want to consider provisions to allocate the costs and responsibilities to cover that eventuality.
Indemnifications
Generally, indemnification provisions require one party to “hold” the other “harmless” if the other is held liable in a civil or other enforcement action. Depending on the lease structure, parties may want to negotiate such indemnifications if the other is held liable for — and is the cause of — ADA non-compliance. This may be very important if a potential tenant finds ADA non-compliance during due diligence, but the landlord is denying the tenant the right to make alterations to the space.
Contact Wright Law Firm Today
For more information, or if you need assistance with negotiating a New York commercial lease, call the experienced New York commercial lease attorneys at Wright Law Firm NYC. We provide top-tier commercial real estate legal services. Our goal is to build long-term relationships with our clients. By gaining insight into their objectives, we can focus the commercial lease negotiation on what matters most to them. To schedule a consultation, contact our office by e-mail or call us at (212) 619-1500.