Liability of Commercial Landlords and Tenants Under the ADA

Effective March 15, 2012, compliance with the Department of Justice's (DOJ) 2010 ADA Standards for Accessible Design (2010 Standards) was required for any alterations to existing facilities subject to the Americans with Disabilities Act (the Act or ADA) and barrier removal. Prior to such date, for the period between Sept. 15, 2010 and March 15, 2012, tenants and landlords were afforded a safe harbor under which an option of complying with the 1991 Standards or the 2010 Standards as to new construction or alteration of existing facilities was available. For a general overview of the revisions to the ADA regulations and the 2010 Standards and their effect on both public accommodations and state and local government entities, please refer to “The DOJ's New ADA Regulations and Accessibility Guidelines” by George J. Kroculick, Andrea M. Kirshenbaum and Jennifer Perry, published in the January 2011 edition of Commercial Leasing Law & Strategy. The purpose of this article is, in light of these new regulations, to revisit the general responsibilities of landlords and tenants under the Act, and offer a few practical considerations in drafting provisions and counseling clients regarding the allocation of responsibilities, as between the landlord and tenant, under the ADA.