The Americans With Disabilities Act (ADA), signed into law on July 26, 1990, makes it unlawful to discriminate against people with disabilities. The law has five sections or "titles" which apply to employment, public services, public accommodations, services operated by private entities, and telecommunications. Title I affects real estate offices and Association offices if they have the threshold number of employees. Title III affects Association offices, real estate offices, and commercial facilities.
Title I of the ADA applies to employment and protects qualified persons with a disability who can perform the essential functions of the job with or without reasonable accommodation. Thus, if a real estate sales office has 15 or more employees, Title I applies.
Title III of the ADA prohibits entities that own, lease, lease to or operate a place of public accommodation from discriminating against the disabled. Businesses covered include hotels, restaurants, convention centers, sales establishments including real estate offices, offices of professionals such as attorneys and CPAs, etc. If a real estate broker or salesperson has a home office in which business is conducted with customers, that portion of the home must also be in compliance with the ADA. The ADA requires equal access and services to disabled individuals in the most integrated setting possible. In essence, that means that architectural and communication barriers are to be removed in existing facilities where such removal is readily achievable and can be carried out without much difficulty or expense. Examples of steps to take in order to remove barriers include installing ramps, rearranging tables and chairs, repositioning telephones, adding raised markers on elevator control buttons, widening doors, or installing offset hinges to widen doors.
Current Legislation/RegulationNone at this time.
What is the fundamental issue?
Under the Americans with Disabilities Act (ADA), attorneys may collect fees related to pursuing claims of non-compliance of the law, but plaintiffs are not permitted to collect damages. These suits often target easily-correctible infractions such as signage, soap dispenser heights, and transition lifts on ramps. Owners of these properties often have a reasonable belief that they are in compliance with the law based on state and local inspections. According to the International Council of Shopping Centers (ICSC), these lawsuits, commonly referred to as “drive-by lawsuits,” are on the rise, with 2016 seeing a 37% increase.
I am a real estate professional. What does this mean for my business?
The ADA’s lack of a notice requirement leaves commercial property owners, who may in good faith believe that their businesses and buildings are in compliance with the law, vulnerable to lawsuits. Once a suit is filed, there is no opportunity to cure the infraction, so property owners spend time and money on attorneys and paying fees which could instead have gone towards fixing the issue. The ADA does not allow victims to collect damages, so a portion of the money goes to paying attorneys’ fees.
NAR supports requiring prior notification of, with an opportunity to correct, alleged violations of the Americans with Disabilities Act before a lawsuit on that alleged violation can be filed, while reaffirming support for the Americans with Disabilities Act and programs that encourage compliance with ADA laws.
Bills have been introduced in Congress for several years which would add a “notice-and-cure” requirement to the ADA, to require that businesses being sued for violations to the ADA receive notice of the violation and an opportunity to fix it before a suit can be filed. In the 115th Congress, two bills have been introduced in the House to address this issue: Rep. Jeff Denham (R-CA) has introduced H.R. 1493, the ADA Lawsuit Clarification Act of 2017, and Rep. Ted Poe (R-TX) has introduced H.R. 620, the ADA Education and Reform Act of 2017.
H.R. 620 is a bipartisan bill requires a plaintiff to give specific notice to a property owner about alleged violations so they know what to look for in terms of a barrier to access. It also allows property owners up to 120 days to fix the alleged violation before the clock starts running on attorneys’ fees. During that 120 days, property owners have the first 60 to outline their path to compliance, and another 60 to complete work to remedy the deficiency. If work is not completed in time, the lawsuit may proceed. Finally, the bill requires the courts, working with property owners and the disability community, to develop a model program for mediations regarding ADA suits.
H.R. 620 passed the House of Representatives on February 15 by a vote of 225-192. Ahead of its passage, NAR issued a commercial-targeted call-for-action, as well as sent a letter of support to the full House. Several state associations also weighed in with letters of support to their Congressional delegations. NAR is a member of a coalition working to resolve this issue, and is committed to working with the Senate on crafting companion legislation.
We've already done the research for you. References (formerly Field Guides) offer links to articles, eBooks, websites, statistics, and more to provide a comprehensive overview of perspectives. EBSCO articles (E) are available only to NAR members and require a password.
Fair Housing Handbook, Fourth Edition—Item # 166-1084
The most comprehensive Fair Housing resource. This handbook, completely revised and updated, is an excellent resource for fair housing guidance. It is the most comprehensive fair housing resource available in the industry. Included in the hand book are suggested fair housing office procedures, background on fair housing regulations, samples of the HUD Equal Housing Opportunity poster and logo, equal service report forms, information on the NAR/HUD partnership and a self-assessment questionnaire.
Order online or call NAR's Contact Center at 1-800-874-6500.
Information From the Department of Justice
ADA Enforcement (Department of Justice)
Federal ADA and Disability Resources (Department of Justice)
How to File an Americans with Disabilities Act Complaint with the U.S. Department of Justice (Department of Justice)
Introduction to the ADA (Department of Justice)
Information From NAR
‘I Need to Bring My Support Dog to the Office’ (REALTOR® AE Magazine, Feb. 21, 2019)
Small Website Details Can Have Huge Importance (REALTOR® Magazine, Nov. 4, 2018)
Americans with Disabilities Act Compliance Kit (National Association of REALTORS®)
Comply with ADA at the Brokerage Office (REALTOR® Magazine)
Fair Housing Resources (National Association of REALTORS®)
Recent Articles on the ADA
Where Luxury Meets Accessibility (The New York Times, Feb. 8, 2019)
Are Your Clients’ Websites Accessible? (Computer & Internet Lawyer, Jan. 1, 2019) E
MAA must pay $8.7 million to fix Post apartments that are not accessible to persons with disabilities (HousingWire, Nov. 21, 2018)
5 ADA Accessibility Myths (Buildings, Jul. 24, 2018)
How to Best Serve Real Estate Clients with Disabilities (eCommission, Jun. 8, 2018)
Sen. Duckworth: 'Offensive' Law Would Weaken Landmark ADA (Curbed, Feb. 28, 2018)
Books, eBooks, Videos, Research Reports & More
The resources below are available for loan through Information Services. Up to three books, tapes, CDs and/or DVDs can be borrowed for 30 days from the Library for a nominal fee of $10. Call Information Services at 800-874-6500 for assistance.
Web Accessibility : Web Standards and Regulatory Compliance (Berkeley, CA: Friends of Ed, 2006) TK 5105.5 T32
Barrier Free Residential Design (New York, NY: McGraw-Hill, 1994) NA 2545 P36
ADA Handbook: Employment and Construction Issues Affecting Your Business (Chicago, IL: Real Estate Education Company, 1993) TH 153 R23
The Americans with Disabilities Act: A Review of Best Practices (New York, NY: American Management Association, 1993) TH 153 Am3
ADA Title III: Compliance Made Practical (Chicago, IL: Institute of Real Estate Management, 1992) HD 1394 In7ad
ADA Compliance Guidebook: A Checklist for Your Building (New York, NY: Building Owners & Managers Association International, 1991) TH 153 B86
The Americans with Disabilities Act: Removing Barriers in Places of Public Accommodation (Jackson Heights, NY: Eastern Paralyzed Veterans Association, 1991) TH 153 Ea7
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