Commercial / Americans with Disabilities Act (ADA) Lawsuit Reform

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.  

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.

Some argue that the industry has had sufficient opportunity to learn the requirements of the ADA and that instances where design and construction are noncompliant reflect situations in which providing accessibility has not been enough of a priority for the commercial building owners.  

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 the issue.  One, H.R. 620, passed the House of Representatives. 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. Unfortunately the bill was unable to gain traction in the Senate due to strong opposition from the disability rights' community.

In the 116th Congress (2019-2020), NAR continued to push for a legislative fix, and met with the Senate Judiciary Committee staff to discuss different potential solutions. NAR is a part of a coalition of industry groups focused on advocating for a solution to the issue of drive-by ADA lawsuits, and will continue to work toward that goal in the current Congress.

No legislation at this time.