Liability of Commercial Landlords and Tenants Under the ADA

The Act

An entity that owns, leases, leases to or operates a place of public accommodation has Title III obligations under the Act (42 U.S.C. ' 12182(a) (emphasis added)), and is, therefore, an entity covered under the Act or a “covered entity” as later referred to herein. “Public accommodations” are entities that are private and have operations that affect commerce and fall into one of the 12 statutorily defined categories. 42 U.S.C. ' 12181(7). Examples of places of public accommodations include:

hotels and other places of lodging; restaurants, bars; theaters, stadiums and other places of entertainment or public gathering; stores and shopping centers; laundromats, dry cleaners, banks, professional offices and other service establishments; public transportation stations; museums, libraries; parks, zoos; private schools; day care centers, shelters; and gyms, spas and other places of exercise or recreation.

Id. As is clear from the text of the Act and the regulations promulgated thereunder, both landlords (and sublandlords) and tenants (and subtenants) of places of public accommodation are covered entities and therefore must comply with all ADA Title III requirements applicable to the place of public accommodation. 28 C.F.R.
' 36.201(b). This is not new based on the DOJ's recent revisions; however, it is important to understand in drafting leases and subleases for use and operation and the responsibilities of the parties to such agreements relative to the requirements of the ADA. The legislative history provides an explanation:

The owner of the building which houses the public accommodation, as well as the owner or operator of the public accommodation itself, has obligations under this Act. For example, if an office building contains a doctor's office, both the owner of the building and the doctor's office are required to make readily achievable alterations. It simply makes no practical sense to require the individual public accommodation, a doctor's office for example, to make readily achievable changes to the public accommodation without requiring the owner to make readily achievable changes to the primary entrance to the building.

H.R. Rep. No. 101-485 (III) at 55-56, reprinted at 1990 U.S.C.C.A.N. 478-79. See also H.R. Conf. Rep. No. 101-596 at 1990 U.S.C.C.A.N. 565, 585 (the Senate accedes to House version).