Real Estate and the Rights of the Disabled Persons

Legal

Real Estate and the Rights of the Disabled Persons
by Robert  D.  Butters



It is estimated that over 40 million persons in the United States have a "disability," as that term is defined by the recently enacted Americans with Disabilities Act of 1990 (the "ADA").

Like other civil rights statutes, the ADA prohibits discrimination against disabled persons because of their disability. But the ADA also requires that architectural barriers be removed if it is "readily achievable" to do so, and that reasonable accommodations be made to allow a disabled person to perform a job or to use the products or services offered by a "public accommodation." For these reasons, the ADA has been described as the most sweeping piece of civil rights legislation to be enacted since the Civil Rights Act of 1964.

Who Does the ADA Protect?

The ADA protects persons with "disabilities." A disability is a physical or mental impairment that substantially limits one or more of a person`s major life activities, or a record of having such an impairment, or being regarded as having such an impairment, whether or not such impairment actually exists. A major life activity includes caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning or working.

The term "disability" specifically includes all forms of mental illness, alcoholism, HIV infection or AIDS, and previous (but not current) drug abuse. ADA protection does not extend, however, to current illegal drug users, or persons who pose a direct threat to the health, safety or property of others.

How Does the ADA Affect the Real Estate Industry?

The ADA section that affects real brokers most directly is Title III, which applies to privately operated "public accommodations." A public accommodation includes nearly every type of establishment that provides products or services to the general public, including real estate brokerage offices.

A public accommodation includes both the tenant who operates the establishment and the entity that owns the property. Brokers representing entities who are, or are about to become, parties to leases involving public accommodations should alert their clients to the need to address ADA compliance in the lease, or in any lease renewals.

1. Access to Brokerage Services

As public accommodations, real estate brokers must make "reasonable accommodations" to insure that their services are available to disabled persons. The ADA provides that "reasonable accommodations" include providing auxiliary aids at the company`s expense if necessary to meet the needs of the disabled person. Auxiliary aids are such services as (1) interpreters, (2) notetakers, (3) assistive listening devices, (4) audio recordings or (5) brailled materials. Whether an auxiliary aid is needed will depend on the specific circumstances. For example, sign language interpreters would not be necessary if a hearing impaired person`s needs could be addressed by writing messages on note pads. Complex negotiations may, however, require sign language interpreters.

2. Barrier Removal

Public accommodations must remove architectural barriers where such removal is "readily achievable." Readily achievable means easily accomplished without much difficulty or expense.

Measures considered "readily achievable" include (1) installing ramps, (2) widening doors, (3) installing grab bars in toilet stalls, or (4) removing high pile, low density carpeting. Brokers should "audit" their offices to determine what barriers can be immediately removed to accommodate a disabled customer or client. If barrier removal is not readily achievable, then services must be provided using alternative methods such as arranging meetings at the disabled person`s home or place of business.

3. New Construction or Alterations

Public accommodations or commercial facilities that construct new buildings, or alter existing structures must do so in a manner that provides accessibility to disabled persons. A "commercial facility" includes office buildings, factories, wholesale facilities or any other location where trade or business is conducted. As a rule of thumb, an "alteration" is any change requiring a building permit. Unlike the flexible "readily achievable" standard for barrier removal in existing facilities, new construction or alterations must be made accessible unless compliance is virtually impossible.

How is the ADA Enforced?

The Justice Department has authority to enforce Title III of the ADA. In addition to mandatory compliance with ADA requirements, the Department may seek civil penalties of up to $50,000 for a first offense and up to $100,000 for subsequent offenses. Private persons may also sue to enforce the ADA, and secure injunctive relief plus attorneys fees if they prevail.

Conclusion

Real estate brokers must understand their individual responsibilities under the ADA to remove architectural barriers from their offices and to make reasonable accommodations when necessary in transacting business with disabled persons. Brokers dealing in non-residential property must also be aware of the duties the ADA imposes upon tenants who operate public accommodations, and their landlords. The ADA should not, however, be viewed as simply one more legal burden brokers and their clients must overcome to avoid litigation. The ADA is also an opportunity to secure new customers and clients who heretofore have been excluded from the real estate marketplace.


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Robert D..Butters. All right reserved. For information contact Frog Pond at 800.704.FROG(3764) or email susie@frogpond.com.