When I defend Virginia property owners in lawsuits involving the Americans with Disabilities Act (ADA), certain plaintiffs greet me warmly as I walk up to depose them. Why? Because we have seen each other so many times we are now on a first-name basis. One plaintiff in particular has filed around 50 ADA lawsuits in Virginia alone.

To property owners and some judges, serial ADA litigants of this type are profiteers who cynically work with so-called “ADA drive-by attorneys” to target commercial property owners, managers and their tenants for money under the pretext of a worthy crusade. But others see things quite differently. They regard these individuals as whistleblowers of sorts, regardless of the purity or impurity of their motives. “Why not ferret out businesses that fail to comply with civil rights laws?” they ask. “If it were the ’60s, would we criticize someone who sued hotels for turning away African Americans?”

Regardless of where you come down on the issue of ADA lawsuits, the reality is that the commercial property sector simply cannot ignore the risk they represent. Below are three tips with the potential to strengthen your ADA risk-management strategy.

No. 1: Engage in a process that demonstrates good faith.

ADA is not a local building code. It is federal civil rights law, which means commercial property owners must be cognizant of its broad objectives. Take ADA’s so-called “readily achievable standard” provision. Those who own older buildings often believe this provision provides an easy exemption from the requirements of the act. “If it is too expensive to do,” the thinking goes, “then we really don’t have to do it because we’re in an older building.”

In reality, the situation is far more nuanced than that.

If your building includes an old store with narrow aisles, your tenant would be unwise to say to a disabled patron, “Sorry. We cannot serve you. It would be too expensive to widen our aisles.” To be sure, your expert witness might explain the age of the building and note that knocking out aisles would reduce the amount of merchandise for sale. But while that might sound like a compelling argument, the plaintiff’s bar would likely counter with a punchier retort: “What else have you done to make your building accessible to the disabled?” If your answer is “Nothing, actually,” the plaintiff’s lawyer will surely pounce: “You couldn’t ask your tenant to put up a sign explaining that people in wheelchairs could ring a bell for assistance if they needed it? Neither you nor your tenant cared enough to put policies and procedures in place to help people with disabilities, given the architectural constraints of the building?” If the plaintiff can show you never took ADA seriously, watch out.

Remember, when it comes to ADA, process counts. Did you go through a process in which you sincerely tried to comply with the act, given your constraints? Do not just assume an architectural change or equipment purchase will be too expensive. Do the research and document what you learn. If the accommodation is not readily achievable, work with counsel to see what else you can do to engage in a good-faith process. Be able to show your clear intent to maximize ADA compliance.

No. 2: Pay attention to ‘curb appeal.’

It is simply impossible for serial ADA litigants to visit and inspect all of the millions of commercial properties in the United States. But what can make your business a likelier target is lack of “curb appeal” with respect to ADA compliance. Imagine an ADA plaintiff’s attorney cruising down a busy thoroughfare on the prowl for possible violators. What perception is your building creating? Is the parking lot full of cracks, with faded lines and weedy curbs? Is the sign over that handicapped space dented, rusted and hanging at a 45-degree angle? Is your wheelchair ramp rotting or in need of a new paint job? These are the types of visual cues that send a message to aggressive plaintiffs’ attorneys. They know that inattention on the outside means a greater possibility of ADA violations on the inside. By contrast, a spiffy appearance could potentially send the message that this property owner is savvy about ADA. The drive-by attorney might just drive on by.

No. 3: Stay abreast of changing regulations.

The ADA was originally passed in 1990, but rather than a static law, it is an ever-evolving set of regulations and guidelines. Commercial property owners need to stay abreast of ADA requirements as they evolve. For example, recent changes deal with everything from the height of x-ray exam tables, to the condition of lifts for the disabled at swimming pools accessible to the public. More broadly, regulators are intent, not just on providing access, but also on actively promoting it. It is one thing to keep a swimming pool lift in storage and haul it out with much fanfare whenever a person needs it. It is another to have a fixed, fully functional lift at the ready—one that does not require the assistance of a team of lifeguards for it to actually be used.

And indeed, fixed lifts are one of the new ADA requirements. Regulators want people to be able to use lifts for both ingress and egress, by themselves. Another huge growth area for ADA—and one that is quite relevant for commercial building owners, managers and real estate agents—is the need to make sure their websites are accessible to the disabled. Can a user turn off that seizure-inducing strobe effect? Does your video have a closed-captioning option? Moving forward,  building owners will need to work with counsel to stay abreast of changing ADA regulations, not just in the brick-and-mortar world, but also in cyberspace.

If you’re looking to add to your home or extend your property in any major way, it is likely you will need to get planning permission for the privilege. While planning permission is not required for every type of property development, it is a complicated and in-depth process, so checking out your rights is important before you begin. There are many important factors that are worth remembering before you do so, though. Here are a few things to consider.

Before you set out to extend or alter your property, it may be useful to check out the details of the building so that you know what your options are. A structural survey may be useful to check the foundations of your property are in good condition, and speaking to architectural services may be of use if you would like further information about the processes involved in gaining permission.

One of the main issues around residential or commercial property planning is that it pays to keep to the style of your surroundings. If the renovations you want to make are drastically different to the houses or buildings around you, it’s likely that your request will be denied. Older properties or buildings in more traditional areas are particularly susceptible to difficulty in gaining permission, as the majority of properties will be in keeping with a particular style.

Likewise, you need to bear in mind the impact your planning will have on your neighbours; if it will cause a lot of noise and disruption, you may find that your local council will deny your request. Of course, it is unlikely that you will be able to avoid such a thing, but it is something to consider in terms of the length of time it will take to carry out your renovation.

Many people avoid extending or making alterations to their homes as it’s believed to be a huge undertaking in gaining permission to do so. But while many alterations don’t require planning permission, those that do are not always as complex as they first appear. Many local authorities and councils are more than willing to offer help and permissions where necessary if you can prove that you have done your research. It pays to provide councils with sufficient research into the area and your property, so as much information as you can offer will help you in the long run. Improvements to a commercial building are similarly complex. Generally requiring permission for changes such as extensions or changes of the use of space over shops or offices,it is likely that commercial property owners will have to deal with acquiring planning permission. As with residential property, conservational areas require more in-depth planning than modern buildings.

The renovation of a property, whether to extend and add value or to simply create a more desirable property for it‘s owners, is often a complex venture but one that, with a little forward planning and research, can be made simpler.

James Stephenson works with planning commissions to ensure properties adhere to rules and regulations put in place by local authority and national government.

After a strong end to 2011 and an even more positive start to this year, it was hoped in many circles that the economy, and in particular real estate markets, was on the right track towards sustained recovery. While property investments remain much stronger in larger cities, New York included, there is cause for concern that the stuttering recovery being experienced by many other towns and cities across the United States could ultimately bring growth in the larger cities to a halt, too.

Gateway Investments

The reasons for these fears are well founded and much could depend on how both the investment community and those looking to buy or rent commercial properties adapt.

While many property investors understandably place their focus on the potentially more lucrative yields to be had in larger cities, having one source of revenue is not enough. For this reason, property investors look to smaller markets for a secondary income or yield in order to supplement their investment in the bigger gateway cities, or to compensate if there is a shortfall at any time from what is still a volatile sector.

Of course, the problem at the moment is that these secondary markets are not delivering in any way, shape, or form. There is probably not even any mileage for investors in taking a speculative punt, given the way many property markets are still reeling from the wreckage of the global financial crisis when it bit worst four years ago. Another issue is that many banks and other lenders are continuing to be strict with regards finances to be invested in lower end properties and markets.

With all of the focus on the bigger cities, what are the likely outcomes for commercial property deals and investments?

The Way Forward

To their credit – no pun intended – many financial institutions are recognising that their approach is creating a barrier of sorts to rejuvenating properties outside of the big cities. With a greater focus and impetus, this could enable the gap to be bridged to the larger markets and see the currently underperforming cities eventually become more attractive opportunities.

Two less likely options are that there will continue to be a strong focus exclusively on the bigger cities, or that property investors will withdraw altogether. These options are so unlikely as they are unsustainable and unrealistic. A focus solely on more lucrative markets would see the eventual collapse, again, of all property investment markets as there would be far too much competition and a saturation of higher end property investments which would be unsustainable and will need to be avoided at all costs.

While the withdrawal of investors to protect funds is more plausible, it remains unrealistic as experienced investors are nothing if they are not patient, and will happily ride out the storm until high yields return, rather than risk missing out altogether when the markets recover.

Harworth Estates are a real estate company with a great portfolio of commercial properties for businesses. If you are looking for a commercial property for sale, HE is a one stop shop where you can choose from many options and also get advice on which ones are best for your business.