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Do your business practices comply with the Americans with Disabilities Act (ADA)? Here are answers to frequently asked questions.

What is the ADA? Who does it protect?

The ADA is a federal law that prohibits discrimination against people with disabilities and ensures equal access and services to those individuals. The protections provided by the ADA are expansive and cover areas such as employment, public services, public accommodations, and telecommunications.

Under the act, a disability is a physical or mental impairment that substantially limits one or more of a person’s major life activities, such as the ability to take care of oneself, perform manual tasks, walk, see, hear, breathe, learn, or work. A disability includes all forms of mental disorders, alcoholism, HIV, and previous drug addiction. ADA protection does not extend, however, to current illegal-drug users or those who pose a direct threat to the health or safety of others.

Does the ADA apply to real estate?

Yes. Title III of the ADA prohibits public accommodations and commercial facilities from discriminating against people with disabilities. Public accommodations are private entities that own, lease, lease to, or operate a place of public accommodation. Places of public accommodation include nearly every type of establishment that provides goods or services to the general public, such as a real estate brokerage office, retail stores, hotels, restaurants, and so forth. This may even include a place of public accommodation located in a private residence. Commercial facilities are privately owned, nonresidential facilities such as office buildings, factories, or warehouses.

Who enforces Title III of the ADA?

The U.S. Department of Justice enforces the ADA through complaints, lawsuits, and settlement agreements. The attorney general is tasked with investigating allegations of discrimination and can file a lawsuit when there is a pattern of alleged discrimination or in cases of general public importance. Private parties may also bring lawsuits under the ADA.

What are the penalties for not complying with the ADA?

A party found in violation of the ADA can face mandatory compliance, monetary damages, and civil penalties. The statutory text of Title III of the ADA provides for civil penalties not to exceed $50,000 for a first violation and $100,000 for subsequent violations. These penalties may be adjusted for inflation, however, and the current maximum civil penalty for violations of Title III of the ADA assessed after May 9, 2022, is $103,591 for a first violation and $207,183 for each subsequent violation.

What should a brokerage do to comply with the ADA?

Real estate brokers must make reasonable modifications in their policies, practices, or procedures to ensure their services and facilities are available to people with disabilities. Reasonable modifications include providing auxiliary aids and services at the brokerage’s expense, if necessary, to meet the needs of people with disabilities. Auxiliary aids may include interpreters, note-takers, assistive-listening devices, audio recordings, or materials in Braille.

In addition, brokers must remove architectural barriers where such removal is readily achievable. Brokers can do this by considering whether they can take measures to provide access to a customer or client with a disability by installing ramps, widening doors, installing grab-bars in toilet stalls, or removing high-pile, low-density carpet. If you cannot do so without much difficulty or expense, you must provide services through alternative methods. For example, you could arrange meetings at accessible locations, such as someone’s home or place of business.

Do websites have to comply with the ADA?

The United States Department of Justice (DOJ) has held that websites are places of public accommodation requiring ADA compliance. On the other hand, the courts are split on whether a website is a place of public accommodation.

Because places of public accommodation include nearly every type of establishment that provides goods or services to the general public, it’s a good idea for brokerage offices to take a proactive approach and contact their website provider or a technical expert to inquire about the accessibility of their websites. There are currently no regulations setting forth detailed standards for compliance; however the DOJ recommends that business websites follow compliance guidelines, such as the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards used by the federal government.

A new tenant in my commercial property says I’m responsible for modifications to the structure to make her store compliant under the ADA. I think the tenant is responsible for the changes within her storefront. Who should make the modifications?

Under the ADA, both a tenant and owner of a place of public accommodation are subject to compliance. However, allocation of responsibility for these changes may be determined (or negotiated) in your lease. Paragraph 15C in the Commercial Lease (TXR 2101) provides that the party designated in the lease (determined by a checkbox) to maintain and repair the item must complete and pay the expenses of any governmental-required modification, including ADA compliance.

Nevertheless, if the tenant is designated in the lease to maintain and repair an item and does not do so, a property owner could still be held responsible for the storefront’s noncompliance. Both the landlord and the tenant are still liable to third parties.

Are there any construction requirements for my client who is purchasing and remodeling an old commercial property?

Yes. The ADA Standards for Accessible Design apply to newly designed and constructed or altered places of public accommodations and commercial facilities. Public accommodations and commercial facilities that construct new buildings or alter existing structures must do so in a manner that provides accessibility to people with disabilities. A commercial facility includes office buildings, factories, wholesale facilities, or any other location where trade or business is conducted. An alteration is any change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility. New construction or alterations must be made readily accessible unless compliance is virtually impossible.

Throughout the process, your clients should document the steps they take to comply with these laws.

Are there Texas laws similar to the ADA?

Yes. Chapter 469 of the Texas Government Code, known as the Architectural Barriers Act, and the Architectural Barriers Administrative Rules outline the requirements to ensure that buildings and facilities are accessible to and functional for people with disabilities.

In addition, Texas has standards to be applied during the design, construction, remodeling, and alteration of public buildings and commercial facilities. These standards are known as the Texas Accessibility Standards (TAS), which apply to various parts of a building, such as parking lots, drinking fountains, light switches, bathrooms, and ramps. The Texas Department of Licensing and Regulation enforces the TAS.

In addition to state law, each local government has the authority to adopt and enforce its own building codes.

Are there penalties for not complying with the Texas accessibility requirements?

Yes. A party found in violation of the Texas requirements can face an administrative penalty that may not exceed $5,000 per day for each violation. Each day that a violation is not corrected is considered a separate violation.

Before imposing an administrative penalty for a violation, the Texas Department of Licensing and Regulation must notify a person responsible for the building and allow the person 90 days to bring the building into compliance. The Texas Department of Licensing and Regulation may extend the 90-day period if circumstances justify the extension.