LANDLORD And TENANT UNDER THE ADA

LANDLORD and TENANT UNDER THE ADA

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by public accommodations.

42 U.S.C. § 12182. Prohibition of discrimination by public accommodations (a) General rule. No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

The Department of Justice (DOJ) regulations for Title III of the ADA are 28 C.F.R. Part 36 and § 36.201(b) states:

Landlord and tenant responsibilities. Both the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to this part. As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract. (emphasis in original).

In Botosan v. Paul McNally Realty Co., 216 F.3d 827 (9th Cir. 2000), a decision under Title III of the ADA, the U.S. Court of Appeals for the Ninth Circuit held that:

The regulation [28 C.F.R. § 36.201(b)] provides that allocation of responsibility between the landlord and a tenant by lease is effective only “[a]s between the parties.” Thus, contractual allocation of responsibility has no effect on the rights of third parties. The power to waive or impose liability as against a third party resides on in Congress, and Congress has stated that both the landlord and tenant are liable under the Act. Id. at 833.

Also, the court cited a House of Representatives Report stating:

H.R.Rep. No.101-485(II), at 104 reprinted in 1990 U.S.C.C.AN. 303, 387. The legislative history confirms that a landlord has an independent obligation to comply with the ADA that may not be eliminated by contract. See Independent Living Resources v. Oregon Arena Resources Corp., 982 F.Supp.2d 1159 (D.Ore.1998) (holding that the landlord, rather than the tenant, is responsible for ADA compliance in common areas). Id. at 833.

Moreover, the court cited the DOJ Title III Technical Assistance Manual, § III-1.2000, stating:

This reading is supported by the DOJ’s formal interpretation of the regulation in its Technical Assistance Manual:

Both the landlord and the tenant are public accommodations and have full responsibility for complying with all ADA title III requirements applicable to that place of public accommodation. The Title III regulation permits the landlord and the tenant to allocate responsibility, in the lease, for complying with particular

Landlord And Tenant Under The ADA Page 1 of 2 provisions of the regulation. However, any allocation made in a lease or other contract is only effective between the parties, and both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.

ILLUSTRATION:

ABC Company leases space in a shopping center it owns to XYZ Boutique. In their lease, the parties have allocated to XYZ Boutique the responsibility for complying with the barrier removal requirements of Title III within that store. In this situation, if XYZ Boutique fails to remove barriers, both ABC Company (the landlord) and XYZ Boutique (the tenant) would be liable for violating the ADA and could be sued by an XYZ customer. Of course, in the lease, ABC could require XYZ to indemnify it against all losses caused by XYZ’s failure to comply with its obligations under the lease, but again, such matters would be between the parties and would not affect their liability under the ADA. Id. at 833-34.

Therefore, as landlords, airport operators and other public entities that lease space to tenants are still liable for the tenant’s discrimination against individuals with disabilities caused or exacerbated by second hand tobacco smoke.

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