Commercial Investment Real Estate is the magazine of the CCIM Institute, the leading provider of commercial real estate education. CIRE covers market trends, current developments, and business strategies within the commercial real estate field.
Issue link: http://cire.epubxp.com/i/306204
18 May | June | 2014 Commercial Investment Real Estate L EG AL BRIE F S tagota/Thinkstock t The number of lawsuits fi led against business owners based on violations of the Americans With Disabilities Act and Federal Hous- ing Administration accessibility requirements grows every year. The best way to avoid a lawsuit is to fi nd and fi x any violations that exist, but many property owners, property buyers, and business opera- tors believe that they are better off not knowing the truth. If they can't afford to fi x a violation, they fear their knowledge will somehow count against them. While there is some cause for concern with respect to multifamily housing, as a general rule, ignorance can only make things worse. Title III of the ADA, which requires acces- sibility for most businesses, is a no-fault stat- ute. If a business is not accessible, the law permits a court to order that it be f xed and that legal fees be paid to the plaintif 's law- yer, regardless of whether or not the owner knew of the problem in advance. T erefore, the owner who knowingly maintains an inaccessible business is no worse of than the innocent owner who has no idea. Knowledge Is Power But the owner who knows can f x problems before a lawsuit is f led and avoid litigation costs altogether. If f xing the problems is not f nancially possible, just having a plan to f x them can reduce litigation costs. Some courts have even dismissed ADA lawsuits on the theory that there was no point in ordering a business owner to do what he was already planning to do. For retail stores, restaurants, shopping centers, and most other businesses that serve the public, knowledge of ADA violations is undoubtedly good. Commissioning an ADA survey will allow the owner to plan for reme- diation and reduce or eliminate the risk and expense of litigation. T e same should be true for owners and managers of multifamily housing. T e Fair Housing Act sets accessibility standards for these properties, and like the ADA, it is usu- ally enforced by orders to f x problems and an award of attorneys' fees to the plaintif . There is one controversial difference though. Under the ADA, the liability of the original property owner is not that much dif- ferent than the liability of later owners. T e original owner is responsible for the prop- erty meeting all of the ADA Standards, while later owners are only responsible for "barrier removal" that is "readily achievable." How- Accessibility Litigation Is ignorance really bliss? by Richard Hunt 1 8 - 1 9 D - L e g a l B r i e f s . i n d d 1 8 18-19 D-Legal Briefs.indd 18 4 / 2 9 / 1 4 2 : 4 4 P M 4/29/14 2:44 PM