By Minh N. Vu

We often hear from commercial landlords that they are not concerned about whether their tenant spaces are accessible because their leases place the obligation for complying with accessibility laws such as Title III of the ADA on the tenants.  A recent decision from the federal district court in Northern California makes clear that landlords should consider a more proactive approach.

In Shaw v. Kaptan Ghimire, the court restated the basic proposition that while the ADA allows landlords and tenants to allocate the responsibility for complying with the ADA between themselves, landlords and tenants are both liable for violations in leased spaces with respect to persons with disabilities who are denied access.  In addition, the court held that both the landlord and the tenant were responsible for the entirety of the plaintiff’s attorneys’ fees and costs awarded by the court.  The court left open the possibility of an apportionment of awarded fees and costs only in situations where there is significant disparity in the time spent pursuing claims against the various defendants.

The case serves as a reminder that landlords should pay more careful attention to the state of accessibility in their tenant spaces even if their leases have provisions requiring the tenant to indemnify the landlord for any losses and pay its defense costs.  Landlords cannot always rely on their tenants to provide them with a timely or competent defense for a number of reasons.  Some tenants lack the financial resources, diligence, and/or knowledge to retain and manage outside counsel.  Some choose to hire outside counsel who have no expertise in ADA Title III matters.  Faced with litigation deadlines that cannot be postponed, landlords may wind up having to take matters into their own hands and hire their own counsel to represent their interests.  Recouping those fees from tenants can be a challenge.