Require Tenant to Inform You Within 10 Days of Receiving ADA Notice
Q: My tenant agreed to be accountable for any ADA infraction that’s discovered in its space in the future. Could I still be on the hook for the same violation? And how can I make sure that I find out about the violation while there’s still time for me to correct it if my tenant hasn’t?
A: Leases typically make owners responsible for complying with the Americans with Disabilities Act of 1990 (ADA) in common areas and make tenants responsible for compliance in their own spaces. But just shifting the ADA burden onto a tenant for its own space isn’t enough. A tenant also should be required to inform you if it gets any notice of an ADA violation.
Why Notice Is Important
Getting prompt notice about ADA violations is important because you could be held responsible for your tenant’s ADA infraction—even though your tenant agreed to be accountable. That’s because a lease clause allocating ADA responsibility isn’t binding on third parties, including the government.
For instance, suppose the federal government notifies your restaurant tenant that it’s investigating a complaint that the restaurant’s water fountain is placed too high to be accessible to wheelchair customers. If the tenant ignores the notice, the government could sue both the tenant and you for something that the lease says is the tenant’s responsibility. And if the government wins damages or penalties, you may have to pay them and seek reimbursement from your tenant—which could take a lot of time and possibly legal bills.
How to Require Report of ADA Notices
To avoid this risk, use a special lease clause that requires both you and the tenant to alert each other about an ADA violation within 10 days of receiving notice of the violation. This prompt notice lets you respond quickly to avoid getting hit with damages or penalties. If you know about a violation in the tenant’s space, you can demand that the tenant meet its lease obligation to comply with the ADA by correcting the violation. So, in the restaurant example above, you could insist that the tenant lower the water fountain—and then monitor the tenant’s efforts until the complaint gets formally withdrawn.
The clause also benefits tenants because they get notices of any notices of ADA violations given to owners. So tenants aren’t likely to resist including the clause in their leases.
Ask your attorney about using the following clause to get—and give—notice of ADA violations.
Model Lease Clause
Reciprocal covenant on notification of ADA violations. Within ten (10) days after receipt, Landlord and Tenant shall advise the other party in writing, and provide the other with copies of (as applicable), any notices alleging violation of the Americans with Disabilities Act of 1990 (ADA) relating to any portion of the Property or of the Premises; any claims made or threatened in writing regarding noncompliance with the ADA and relating to any portion of the Property or of the Premises; or any governmental or regulatory actions or investigations instituted or threatened regarding noncompliance with the ADA and relating to any portion of the Property or the Premises.
When to Require Notice of Violation
Make sure that the clause is triggered whenever either you or the tenant gets a notice in one of the following situations:
From an individual. An individual claims that a certain part of your property or the tenant’s space violates the ADA.
From the federal government. You realize that the federal government is investigating an ADA complaint from an individual. (The Justice Department handles ADA complaints about public facilities.) If the complaint isn’t resolved, the government can ask a federal court to order both you and the tenant to take a particular action or pay penalties. Or the government can seek damages against you and the tenant on behalf of individuals.
From an individual or the government. An individual or the government threatens a lawsuit or other legal action against you or the tenant based on a claimed violation of the ADA.
Lawsuit filed by an individual or the government. You learn that an individual or the government has filed a lawsuit or other legal action, claiming that you or the tenant didn’t comply with the ADA.