The Americans with Disabilities Act (ADA) of 1990
Every property owner in the greater Los Angeles Area understands that operating a building is a lot more than just collecting rents, paying bills and addressing maintenance issues. In today’s world, property owners have to navigate governmental agencies such as local rent control boards, California Department of Fair Employment and Housing (DFEH), U.S. Department of Housing and Urban Development (HUD) and so on. On top of that, owners have to keep abreast of the ever-changing legal environment.
Up to this point, the Americans with Disabilities Act (ADA) of 1990 was best understood by our commercial counterparts but over the past 20 plus years, the ADA has started to impact apartment owners. For example, ADA touches on websites, parking, public access common areas, government subsidies, tenant requests for accommodations, substantial rehabilitations, service animals and even grading of concrete slabs. As a landlord, it is important to be informed on ADA to better manage risk and to decrease the chances potential frivolous legal action.
Even though there are significant issues to address by property owners, the spirit of the Americans with Disabilities Act (ADA) of 1990 is something that every owner would agree with and champion. The bill was designed to be a civil rights bill to stop discrimination against those with disabilities. It modeled protections for those with disabilities after the Civil Rights Act of 1964. But it also went beyond the Civil Rights Act of 1964 and required reasonable accommodations to be made by employers and publicly accessed facilities.
The bill itself is composed of five “Titles.” Title l deals with employment focusing on companies with 15 or more employees to make accommodations for employees with disabilities. Title ll relates to public entities and public transportation. Interestingly enough, this section would apply to any form of governmental housing including voucher-based Section 8.1 Title lll deals with public accommodations, commercial facilities, service animals and ancillary aids. This section has the biggest impact on property owners because it can apply to existing buildings. Title IV deals with telecommunications which would have little impact if any on property owners. And finally, there is Title V which is made up of miscellaneous provisions including an antiretaliation provision for those that exercise their right under the ADA.
If Title III only applied to new buildings built approximately after 1992, local property owners would be in the clear. But Title III also applies to building built prior to 1992. The law views failures to remove architectural barriers in existing buildings as possibly discriminatory. The standard to evaluate an owner’s obligation under the law is, is it “readily achievable.” This basically means balancing the cost of the change and whether it is financially feasible for the owner. In principle, what may be easy and financially feasible for 150-unit property may not be as simple or financially feasible for a 4-unit building. But in practicality, there are a few nuances to consider when it comes to architectural barriers and Title lll as a whole.
First, any area in a property that is open to the public and not just residents must be compliant with Title III.2 For example, if a 150-unit property with guest parking, leasing office, common area rented for local community meetings would need to meet the readily achievable parking and accessibility requirements under the ADA. But a 4-unit property with parking that is only available for the building’s residents, would not be required to meet parking requirements under the ADA. Of course, not every situation is this black and white, but this at least gives an owner an idea of how to view common areas at a property and what potential ADA compliance risks might exist.
Second, Title lll gives tenants the ability to request accommodations or modification and not be retaliated against per Title V of the ADA. Accommodations may include both alterations to the property and service animals. When it comes to alterations or modification to a unit or common area, the resident can make a reasonable request to the owner and the owner should try to work with the resident as much as is reasonably possible.
The good news for the owner is that the resident is responsible to pay for the alteration and modification. An accommodation would be a request to change the house rules or lease to meet the needs of the resident. Case in point, a request for a service animal is a request for an accommodation, and it is also dealt with in Title lll. To date, most owners are aware of the rules in relation to service animals. An owner cannot charge additional rent or extra security deposit for a service animal. An owner can ask what task the service animal performs but cannot ask to have the service animal perform that task. An owner cannot ask what disability a person has but rather he or she can ask does the resident have a disability if it is not observable.
Third, rehabilitation and alterations to common area amenities will most likely trigger the need for compliance with the ADA. This includes upgrading elevators, altering swimming pools, public bathroom, water fountains, slope of concrete slabs, etc. The good news is that requirements are in relation to the areas where the work is being done and possibly paths of travel to and from these areas in question. When engaging in any alteration to common area and common area amenities, it is recommended to consult with a qualified licensed professional with knowledge of the ADA.
Fourth, websites are considered a public accommodation and are subject to Title lll. This means that an owner’s website needs to be accessible to those with disabilities. There are currently three levels of Web Content Accessibility Guidelines (WCAG2.0): Level A, Level AA & Level AAA. Level A allow a sight to only be used by some users. Level AA allows a site to used by most users and Level AAA allows a site to be used by all users.4 Should an owner have a website, it his highly recommended to reach out to a qualified website professional that can adequately advise on being ADA compliant.
Finally, the Section 8 voucher system is regulated by Title ll. Property owners know that they cannot discriminate based on income in the State of California and are, therefore, required to accept any qualified applicant with a housing voucher “as if” the housing voucher were income. Should a disabled voucher applicant or tenant require a reasonable modification or accommodation, the owner would process this request like any other disabled resident making such a reasonable request.
The voucher resident could be required to finance the reasonable request. The good news for the owner is that the housing authority which issues the vouchers has protocols in place for disabled voucher recipients. These protocols included extending the voucher beyond 60 days allowing disabled applicants to live at a property owned by a relative, increasing payment amount over 120% of the Area Median Income (AMI) with approval from HUD, etc.1 The burden to the landlord in light Title ll of the ADA in regard to Section 8 tenants is not burdensome and similar to what would be required for a non-voucher disabled renter.
In closing, the days of ADA being the distant reality associated with commercial properties has long since passed. Today any residential rental property owner needs to know that the ADA impacts at every facet of a property. ADA touches the common areas which are open to the public, it touches on renters’ rights to make requests for accommodations such as service animals and modifications to units and common areas, and it touches property upgrades to those common area amenities. ADA also touches an owner’s presence online via websites. And, finally, ADA even comes into play with tenants that have housing vouchers.
Given all this, there are unscrupulous attorneys out there who are looking for ways to bring frivolous lawsuits against any owner. Beware! Should an owner receive a frivolous lawsuit in relation to ADA compliance, do not hesitate to reach out to legal counsel.
(Editor’s Note: Be sure to view our webinar featuring Mr. Williams from June 25, 2021, where he and other experts address the ADA and the complications and risks associated with compliance. The recording of the ADA webinar is available to all members of the Apartment Association of Greater Los Angeles for no charge, and is located in our Webinar Library.)
Matt Williams is the principal of Williams Real Estate Advisors, Inc. which is a full-service property management company that has approximately $150,000,000 of multifamily assets under management throughout Southern California. Mr. Williams is also a member of the Board of Directors of the Apartment Association of Greater Los Angeles. You can reach Mr. Williams at matt@williamsrea.com. This article is meant to give an overview of how the ADA currently impacts local owners. Owners are advised to seek professionals with ADA experience with should they have further questions.
__________
2 https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/accessibilityR
3 https://www.naahq.org/news-publications/housing-accessibility-misconceptions
4 https://www.webfx.com/blog/web-design/website-accessibility-checklist/