Both landlord and tenant can be liable for ADA violations on leased California commercial property. The ADA holds both responsible, regardless of what the lease says — though the lease can shift indemnification between them. The triggering ADA improvements depend on who controls the space (interior fit-out vs. shell building), what alterations were made, and what the lease assigned. Negotiating clear ADA allocation in the lease before signing is materially cheaper than fighting about it after a lawsuit.
One of the first things we hear from clients is that they aren't responsible for the alleged barrier on the property, that responsibility sits with the landlord (or the tenant, depending which side you're on) under the lease. The answer is more counterintuitive than most expect.
In Botosan v. Paul McNally Realty, a California court addressed this question directly. Botosan, a wheelchair-bound plaintiff, claimed he was denied access to a realtor's office due to a lack of handicapped parking and sued both the landlord and the tenant under the ADA and Unruh Act. The lease between landlord and tenant assigned all responsibility for ADA compliance to the tenant. The landlords asked the court to dismiss them on that basis. The court refused, at least as to Botosan. The landlord might have a separate case against the tenant under the lease, but as to the disabled plaintiff, both landlord and tenant remained liable.
Tenants are not responsible for elements they have no control over. If a tenant is one of several sharing a parking lot and has no authority over parking spaces, that tenant can be dismissed. You can't be held responsible for something you don't have the power to change. But outside that narrow exception, both landlord and tenant must see the case through to conclusion and are jointly and severally liable for any judgment.
None of this nullifies the lease. Either within the ADA suit itself or in a separate lawsuit, the parties can enforce the terms, including indemnification provisions and attorney's fees. In the Botosan example, the landlord could recover all expenses, possibly including attorney's fees (depending on the lease language), from the tenant. That's a separate question from whether the disabled plaintiff can recover from the landlord, those two recoveries operate independently.
Turning a two-way fight into a three-way fight usually costs both landlord and tenant more. Some landlords or tenants are uncooperative, which forces the other side to file a separate suit just to enforce the indemnification.
The ADA litigation problem has been going on for decades. Most modern commercial leases now apportion ADA compliance, often (but not always) entirely to the tenant. As a landlord, you should monitor your tenant's compliance and your own compliance in common areas. As a tenant, notify your landlord of common-area issues in writing and keep your own premises accessible. Neither side can hide behind the lease and avoid an ADA lawsuit. The court won't allow it.
Skyline Business Law has helped landlords and tenants fight wrongful disability access lawsuits across Orange County, the Inland Empire, Los Angeles, and Northern California. If you think your business is being targeted by a professional litigant, call (949) 287-6901 right away. The clock starts running the day you're served.
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