Commercial Space and ADA

Wolf Haldenstein Adler Freeman & Herz
Steven D. Sladkus, Jeffrey M. Schwartz, and Jeffrey S. Reich, Partners

One cooperative client of ours that owns commercial space on the ground floor of its building fell victim to a serial lawsuit brought under Title III of the Americans with Disabilities Act (ADA). Title III of the ADA allows disabled individuals to file lawsuits against cooperatives (and condominiums), forcing them to alter entrances to their storefronts to make them handicapped-accessible. Though monetary damages are not available under Title III, prevailing plaintiffs are entitled to recover their attorneys’ fees. In recent years, a small group of ADA lawyers has capitalized on the ADA’s attorneys’ fees provision by teaming up with a serial ADA plaintiff (one who is unquestionably disabled) and commencing hundreds of lawsuits based on technical or very minor ADA violations. The ADA does not require a plaintiff to provide any prior notice of his or her intent to file suit. As a result, many buildings, including in this instance our cooperative client, found themselves facing lawsuits without any warning. Given that liability was a “slam dunk” for the plaintiff and our cooperative client was on the hook for the plaintiff’s legal costs, we resolved the claim quickly to minimize our client’s exposure and stop the plaintiff’s legal fees from accruing. The settlement entailed correcting the alleged ADA violations and paying an agreed-upon amount for attorneys’ fees. While the violations were easily resolved, the claim for attorneys’ fees was settled for less than $10,000, a steep price to pay, but one that is nearly unavoidable under Title III.

Legal Lesson

Title III ADA lawsuits can be avoided by taking a few protective measures. Confirm that your building’s insurance policy protects against these claims. Retain an ADA compliance expert to survey the building for violations and recommend solutions for correcting them. Many times, the solutions can be simple and inexpensive. For example, if the store entrance in your building has steps, consider purchasing a temporary ramp and installing a wireless doorbell. Being proactive will not only avoid unwanted litigation, but will also serve the ADA’s true goal of assisting the disabled.