Legislative Affairs: Support Reform of the Americans with Disabilities Act

Philip Weiden | July 2017

Under the terms of 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. Lawsuits 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 they are in compliance with the law based on state and local inspections. According to the International Council of Shopping Centers, these lawsuits, commonly referred to as “drive-by lawsuits,” are on the rise, with 2016 having seen a 37% increase in case filings.

The ADA’s lack of notice requirement leaves commercial property owners, who may in good faith believe 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 attorney’s fees that could instead have gone towards remedying the issue. The ADA, as stated earlier, does not allow victims to collect damages, so a portion of the money goes to paying attorney fees.

The National Association of Realtors supports requiring prior notification of—with an opportunity to correct—alleged violations of the Americans with Disabilities Act before a lawsuit on an alleged violation can be filed, while reaffirming its support for the Americans with Disabilities Act and programs that encourage compliance with ADA laws.

Bills have been introduced in Congress for several years that would add a “notice-and-cure” requirement to the ADA that businesses being sued for violations to the ADA receive notice of the violation and an opportunity to remedy 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. 1492, 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 requiring a plaintiff to give specific notice to a property owner regarding 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 attorney’s fees. During the 120-day time period, property owners have the first 60 days to outline their path to compliance, and another 60 days to complete work to remedy the deficiency. If work is not completed in time, the lawsuit may proceed. Finally the bill requires courts, working with property owners and the disability community, to develop a model program for mediation regarding ADA suits. Companion legislation has not yet been introduced in the Senate.

NAR belongs to a coalition of commercial real estate property management industry groups working to reform the ADA to include a notice-and-cure requirement, and supports H.R. 620 in the House. We will continue to advocate for its passage and work with the Senate as it prepares its companion bill.

Philip Weiden
Legislative Affairs columnist Philip Weiden is the Government Affairs Director for the Hudson Gateway Association of Realtors.