Are Apartments and other Rental Properties Vulnerable ADA access lawsuits?

ADA apartments and residencesWhile the Americans with Disabilities Act (ADA) and California’s similar disability discrimination laws have broad applicability, the vast majority of lawsuits allege “access barriers” in “public accommodations.”  The reason these access lawsuits  far outnumber other ADA lawsuits (e.g., employment or housing discrimination)  is that they allow lawsuits by people having only minimal contact with the target of the lawsuit.

Additionally, “discrimination” in these types of lawsuits doesn’t require an act as severe as a refusal to hire or provide housing to a person based on disability but merely a deviation from a building code pertaining to access.  Such code deviations abound in structures built before the adoption of accessibility regulations. Although access laws were intended to largely exempt buildings constructed before the adoption of these laws, there is an exception to the exemption.  This exception has essentially swallowed the exemption.  As a result, structures built before the adoption of public accommodation access laws are more vulnerable to lawsuits, and cash rewards to litigants, than later-built structures.  Moreover, a cottage industry has risen around access lawsuits against public accommodations, especially in California which is the only state to provide a specific cash reward to litigants.

So what is a “public accommodation”?  Generally speaking, it is a venture which is open to the public.  Typically, public accommodations are businesses such as restaurants, retail stores, and hotels, but can also includes offices, museums, and schools.  As a result, owners and operators of such facilities have found themselves vulnerable to lawsuits by anyone claiming to be a potential customer or patron.  Even persons who have never visited the public accommodation, claiming to have been “deterred” from visting by an “access barrier” (e.g., lack of disabled parking or improperly striped and signed parking), have standing to sue.  Some individuals have literally filed thousands of access lawsuits, making a lucrative living from the practice.

On the other hand, the term “public accommodation” does not extend to residences, including apartment buildings and condominiums.  See e.g., Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1553.  However, arguably these laws pertain to leasing or sales offices at apartment buildings and condominiums.  By extension, the parking and pathways to such facilities would also be included.  Hence, the latest spate of access lawsuits is against apartment buildings.

About William Adams

Attorney at Norton, Moore, & Adams, LLP.
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