How to Tell Who Pays for ADA Fixes, Landlord or Tenant
To tell who pays for ADA fixes in a commercial lease, read 28 CFR 36.201(b), which lets the lease allocate responsibility between the landlord and the tenant.
At Reach Commercial Real Estate, we represent tenants. We help you find locations, compare costs, investigate property questions and negotiate the lease. You bring your business plans. We help you evaluate where those plans fit.
This guide covers what the federal ADA rules say about responsibility in a lease, what counts as an alteration, the path-of-travel rule and the 20 percent line.
1. Find out who pays for ADA fixes in a commercial lease
If you own or operate the business, 28 CFR 36.201(b) counts you and your landlord as public accommodations, and both of you are subject to the requirements of that part.
As between the two of you, "allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract."
Landlord work versus tenant work is a lease term on our checklist.
2. Know what counts as an alteration
An alteration made after January 26, 1992 has to be made so that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs (28 CFR 36.402(a)(1)).
The rule's list of alterations includes:
Remodeling, renovation, rehabilitation and reconstruction.
Historic restoration.
Changes or rearrangement in structural parts or elements.
Changes or rearrangement in the plan configuration of walls and full-height partitions.
Normal maintenance, reroofing, painting or wallpapering, asbestos removal, and changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility (28 CFR 36.402(b)(1)).
3. Apply the path-of-travel rule
If your alteration affects or could affect the usability of or access to an area that contains a primary function, the path of travel to the altered area and the restrooms, telephones and drinking fountains serving it have to be readily accessible to the maximum extent feasible. The exception is a cost and scope that is disproportionate to the cost of the overall alteration (28 CFR 36.403(a)(1)).
We map headcount, parking, power and signage before you tour. Our tenant checklist covers ADA among whether the building works, along with parking at peak hours, specialty plumbing, electrical capacity, HVAC and ventilation, sprinklers and exits, and signage.
4. Check the 20 percent line
Path-of-travel work is deemed disproportionate when its cost exceeds 20 percent of the cost of the alteration to the primary function area (28 CFR 36.403(f)(1)).
For an alteration to the primary function area that costs $50,000, 20 percent is $10,000. Path-of-travel work that costs more than $10,000 is deemed disproportionate in that example.
For an alteration to the primary function area that costs $200,000, 20 percent is $40,000. Path-of-travel work that costs more than $40,000 is deemed disproportionate in that example.
When the cost is disproportionate, the path is made accessible to the extent that it can be made accessible without incurring disproportionate costs (28 CFR 36.403(g)(1)).
5. Separate tenant space from landlord areas
If you alter only areas that you alone occupy, those alterations do not trigger a path of travel obligation upon your landlord with respect to areas of the facility under the landlord's authority, as long as those areas are not otherwise being altered (28 CFR 36.403(d)).
Our role is to help bring these findings into your property decision. Your qualified professionals and reviewing agencies determine the requirements.
6. Screen the property and tour with these questions in mind
A listing gives us a starting point. We ask for the information needed to evaluate the property. For each candidate, we request previous use and available floor plans, proposed landlord work, and availability and delivery condition.
If a critical answer is missing, we keep the property under investigation. We do not treat an unanswered question as an approval.
During a tour, we look beyond the finishes. We help you identify questions for the landlord and your contractor.
For promising spaces, bring your contractor and design professional into the review. We help gather property information. They evaluate the technical work and cost.
7. Write the allocation into the lease
Once you select a property, we negotiate the business terms. Your Florida commercial leasing attorney reviews the legal language and documents. We focus on landlord delivery and maintenance obligations, among other terms.
We write down what the flyer left out, then line up offers on total occupancy cost per year.
Extra items to check
Accessible parking. All required handicapped parking has to be on the principal, on-site parking lot (Melbourne Land Development Code, Sec. 9.75).
Restroom route. The route to public toilets cannot pass through kitchens, storage rooms or closets (Florida Building Code, Plumbing, section 403.3.1).
Permits. Melbourne requires building permits for tenant buildouts and renovations, and the city recommends contacting Code Compliance during planning.
Schedule changes. If the project schedule changes, raise the lease implications early. Review the documents with your attorney rather than assume a delay changes your payment obligations.
Start your search with Reach
You do not need to find the property before calling us. Helping you find and evaluate the property is part of our work.
Bring your requirements, budget, preferred area and target opening date. For each candidate, we request previous use and available floor plans, proposed landlord work, and availability and delivery condition. We will use those details to build your search, compare locations and negotiate the lease. In most deals the landlord pays our fee.
Already found a space? Send me the address and listing. We will start with the property questions and deal terms you need to investigate.
Call Cassandra Hartford at 321-514-0876.
See tenant representation and the space needs analysis.
Related: the leasing guide.
Frequently Asked Questions
Can a series of small alterations avoid the path-of-travel rule?
The obligation to provide an accessible path of travel may not be evaded by performing a series of small alterations to the area served by a single path of travel if those alterations could have been performed as a single undertaking (28 CFR 36.403(h)(1)).
Does the ADA address barriers in space that is not being altered?
A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where removal is readily achievable, meaning easily accomplishable and able to be carried out without much difficulty or expense (28 CFR 36.304(a)).
Which Florida code covers accessibility in a change of occupancy?
Section 1006 of the Florida Building Code, Existing Building, covers accessibility in a change of occupancy and says it shall comply with the provisions of the Florida Building Code, Accessibility.
Sources
Written by Cassandra Hartford, founder and CEO of Reach Commercial Real Estate. She has worked in Brevard County commercial real estate for 17 years, representing buyers, sellers, landlords, and tenants across Florida's Space Coast.
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