Joshua S. Bauchner, Partner in the Landlord-Tenant and Litigation Practice Groups at Mandelbaum Barrett PC, recently wrote an article for the New York Real Estate Journal titled “Protecting Properties and Businesses from ADA Litigation“. In it, he sheds light on the rising wave of lawsuits targeting property owners and businesses under the Americans with Disabilities Act (ADA) — often brought not by customers seeking access, but by “testers” looking for technical violations and financial payouts.
The Rise of ADA “Tester” Lawsuits
Bauchner explains how individuals working with law firms visit businesses not to shop or dine, but to search for noncompliance. They measure ramp angles, check door widths, and review counter heights in hopes of spotting infractions. Increasingly, websites are also being scrutinized with software designed to detect accessibility shortcomings.
These lawsuits can demand settlements of $20,000 or more, even when no actual harm has been caused. In fact, ADA litigation has surged by 320% since 2013, with repeat plaintiffs filing boilerplate complaints against businesses, sometimes far outside their own communities.
The Legal Complexities for Landlords and Tenants
Commercial landlords and small businesses face unique challenges, as they can be held jointly and severally liable for alleged violations. This includes demands for expensive remediation or, in some cases, production of confidential financial records to prove that compliance is cost prohibitive. Importantly, many properties built before 1992, if not significantly modified, may qualify for grandfathered status, though plaintiffs’ attorneys rarely acknowledge this.
Proactive Compliance Strategies
To reduce the risk of becoming a target, businesses must take proactive steps:
- Conduct Accessibility Audits: Hiring a Certified Accessibility Specialist (CASp) can help identify and address potential issues in both physical and digital spaces before they escalate into lawsuits.
- Stay Informed on Legal Developments: Court rulings continue to shape how ADA claims are handled, particularly in the digital sphere.
- Engage Experienced Counsel: Knowledgeable ADA defense attorneys can assess the strength of claims, push back against baseless suits, and craft effective defense strategies.
Balancing Inclusivity and Protection
Bauchner underscores that the ADA has played a vital role in expanding accessibility and promoting inclusivity. Yet, while compliance is essential, businesses must also safeguard themselves against exploitative litigation tactics. With a combination of diligent accessibility practices and strong legal representation, property owners and businesses can both support inclusivity and protect their operations from unnecessary legal burdens.
You can reach Joshua S. Bauchner at jbauchner@mblawfirm.com or at 646-369-0250.
Read the full NYREJ article here.
To learn more about ADA compliance, see the following articles below: