LeClairRyan attorney offers “best practices’”for real estate firms subject to growing number of ADA lawsuits
WILLIAMSBURG, Va. (8/7/14) –With the proliferation of suits filed by so-called “ADA drive-by attorneys,” commercial property owners, managers and their tenants can no longer ignore the risk that violations of the Americans with Disabilities Act represent, warns LeClairRyan partner Brian Muse in a DailyProperties.com column posted on July 31.
“The ADA was originally passed in 1990, but rather than a static law, it is an ever-evolving set of regulations and guidelines,” he writes, adding that the law’s reach now even extends to the operations of companies’ websites. “Commercial property owners need to stay abreast of ADA requirements as they evolve.”
In the column “Steering Clear of ADA Drive-By Lawsuits: Three Tips For Better Managing ADA-Related Risk,” Muse offers some simple tips that may strengthen commercial property owners’ ADA risk-management strategy, helping them to avoid potentially complex and costly lawsuits.
“ADA is not a local building code. It is federal civil rights law, which means commercial property owners must be cognizant of its broad objectives,” advises Muse, who is based in the national law firm’s Williamsburg, Va. office. “Take ADA’s so-called “readily achievable standard” provision. Those who own older buildings often believe this provision provides an easy exemption from the requirements of the act. ‘If it is too expensive to do,’ the thinking goes, ‘then we really don’t have to do it because we’re in an older building.’ In reality, the situation is far more nuanced than that.”
Instead, the property owners’ decision-making process is what counts, he cautions. For example, rather than assuming that an architectural change or equipment purchase will be too expensive, “do the research and document what you learn. If the accommodation is not readily achievable, work with counsel to see what else you can do to engage in a good-faith process. Be able to show your clear intent to maximize ADA compliance.”
The curb appeal of a property may also increase or decrease a property owner’s chances of getting slapped with an ADA lawsuit. “Imagine an ADA plaintiff’s attorney cruising down a busy thoroughfare on the prowl for possible violators,” says Muse, who blogs about ADA issues at ADAmusings.com. “Is the sign over that handicapped space dented, rusted and hanging at a 45-degree angle? Is your wheelchair ramp rotting or in need of a new paint job?”
Visual cues send a message to aggressive plaintiffs’ attorneys, because “they know that inattention on the outside means a greater possibility of ADA violations on the inside,” he counsels. “By contrast, a spiffy appearance could potentially send the message that this property owner is savvy about ADA. The drive-by attorney might just drive on by.”
Commercial property owners should also keep up with changing ADA regulations, Muse advises. That’s because regulators are intent on more than just providing access; they also want property owners to actively promote it.
“It is one thing to keep a swimming pool lift in storage and haul it out with much fanfare whenever a person needs it,” according to Muse. “It is another to have a fixed, fully functional lift at the ready—one that does not require the assistance of a team of lifeguards for it to actually be used.”
Another huge growth area for ADA—and one he says is quite relevant for commercial building owners, managers and real estate agents—is the need to make sure that their websites are accessible to the disabled. “Can a user turn off that seizure-inducing strobe effect? Does your video have a closed-captioning option?” asks Muse. “Moving forward, building owners will need to work with counsel to stay abreast of changing ADA regulations, not just in the brick-and-mortar world, but also in cyberspace.”
To read the full column, visit http://dailyproperties.com/steering-clear-ada-drive-lawsuits-three-tips-better-managing-ada-related-risk/
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Colorado, Connecticut, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Pennsylvania, Texas, Virginia and Washington, D.C., the firm has approximately 370 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit www.leclairryan.com.