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ADA/Access Attorneys Explain Why Ambiguity in Commercial Leases Makes Legal Representation Imperative

ADA/Access compliance claims present a particularly vexing problem for both commercial landlords and tenants.  Standard commercial leases, such as “triple net leases” tend to vary in terms of language.  But they generally do not specifically address the responsibility of commercial landlords and tenants for making improvements to provide access under the ADA or the responsibility for defending these costly lawsuits.  While the parties are certainly free to allocate responsibility to either party, few commercial releases clearly articulate responsibility for defense and repairs related to ADA-Access lawsuits.

This lack of clarity has caused disastrous financial consequences for commercial property owners and their tenants.  Commercial landlords have incurred extensive litigation expenses or improvement costs assuming responsibility for access problems created by tenants.  Many tenants have immediately assumed the duty to defend against an ADA/Access lawsuit after the landlord invoked the tenant’s duty to comply with all applicable laws, indemnify the landlord for lawsuits arising from the tenant’s use of the premises, or the covenant to repair.  This post examines the unsettled nature of the allocation of responsibilities to comply with ADA/Access standards, as well as why these ambiguities make prompt legal representation necessary for commercial tenants and landlords facing ADA/Access claims.

Some commercial landlords attempt to invoke standard clauses that might not apply directly in the context of ADA access cases.  For example, landlords often invoke the duty to repair clause and treat non-compliance with ADA standards as akin to the premises being “broken.”  The problem with this reasoning is that traditional litigation over the duty of repair usually involves latent conditions like asbestos hidden in the walls or the need for a seismic retrofit.  These are not conditions that either party is likely to discover through their observation of the premises.  By contrast, ADA access barriers can be observed by both parties to a commercial lease before execution of the agreement without the assistance of experts.  Further, both commercial tenants and landlords are charged with “constructive knowledge” of ADA access standards, so decisions involving a tenant’s duty to repair can be distinguished in this context.

Similarly, commercial landlords also argue for the application of other standard provisions in commercial leases that might be inapplicable in an ADA/Access lawsuit.  The provision that requires a tenant to indemnify the owner from lawsuits arising out of the tenant’s use of the premises has moved many tenants to assume the sole defense of an access claim.  However, a common rule of law in many states is that a party cannot seek indemnification for its own negligence. This principle might make use of the indemnification clause inapplicable.

Commercial landlords also have invoked the duty of the tenant to obey all laws.  As experienced ADA/Access attorneys, we note that this provision usually applies to a tenant’s compliance with laws when conducting operations.  Attempts to apply this provision to require a tenant to fix long existing structural problems that existed before the commencement of the lease might be unpersuasive to a judge or jury.  The inapplicability of this provision is even more apparent when considering the contrary duty of a tenant to return the premises in the same condition.

Given that costly structural renovations will inure to the benefit of the commercial landlord at the end of the lease, and the fact that the landlord typically drafts the lease agreement, tenants should not simply assume sole defense of an ADA/Access lawsuit because of the landlord’s reliance on these types of provisions in a standard commercial lease. Either party to a commercial lease can avoid costly litigation and unanticipated ADA/Access renovation expenses by clearly allocating responsibility for defending lawsuits and indemnification for ADA/Access issues.

However, immediate legal representation is essential in most cases because of the unsettled nature of the rights and responsibilities of landlords and tenants for ADA compliance.  The complexity of this issue is compounded by facts, such as the nature of the access impediment (e.g. longstanding structural issues vs. a rolling rack), the financial resources and insurance available to each party, the tenant’s right under the lease to perform the necessary renovations, and a litany of other considerations.  If you are facing a lawsuit based on access issues, you should seek immediate legal advice from an ADA/Access attorney.