ADA Lawsuits: Fix First, Then Fight
Fix First, Then Fight is a slogan and a philosophy for the defense of ADA and FHA lawsuits. It is also the most practical approach to the defense of such claims. Sooner or later, almost every owner of a commercial or multi-family residential property will receive a demand letter or be served with a lawsuit claiming violations of the Americans with Disabilities Act or Fair Housing Act accessibility standards. Although the accessibility standards are now more than 20 years old, accessibility lawsuits continue to increase, and surveys indicate that almost all commercial and multi-family properties have some accessibility violations.
Accessibility lawsuits are always irksome. Most businesses try to comply with the ADA and FHA, and getting sued over a handful of minor violations seems unfair. Nonetheless, a strategy based on remediation rather than litigation is almost aways the most sensible response to an accessibility claim. The accessibility guidelines are generally objective, and a complaint that a doorway is too narrow or a ramp is too steep is probably true. The ADA requires remediation of all barriers to access if readily achievable, and provides for attorneys’ fees for prevailing plaintiffs. Most ADA violations can be fixed at modest expense, so the legal fees incurred fighting over whether to remediate may exceed the cost of remediation.
A property owner or operator faced with an accessibility claim should start by hiring a specialist to both test the complaint and look for other problems. Most accessibility claims begin with an informal survey by the complaining party that may miss many violations. If the litigation is protracted there will likely be a more comprehensive survey. A property owner or operator needs to know where the issues are before the complaining party does and develop a strategy that uses that knowledge.
Once the real problems have been identified, they should be corrected as quickly as possible. If correction over a short time is not possible, the owner should develop a plan that includes both a budget and a schedule for fixing the problems. The primary relief sought in accessibility cases is an injunction requiring the problem to be fixed. When the owner or operator remediates or commits to remediation the Court may find that no relief is needed and dismiss the lawsuit entirely. At the very least a plan will leave the complaining party with little reason to argue for significant attorneys’ fees. Courts in North Texas have awarded hundreds of thousands of dollars to plaintiffs’ attorneys who demanded complete remediation even when the barriers to be remediated were few in number. Why? Because the law requires remediation, and the property owner who resisted remediation was seen as the unreasonable party responsible for the increased fees.
Sometimes, of course, an owner or operator must fight because there is no way to reach agreement on whether a violation exists or whether it can be remediated. When there is no alternative to litigation a number of legal and practical defenses may be available, and defense victories are possible. At the same time, the sensible response to most ADA and FHA accessibility claims is to confirm the problems and fix them, so the owner’s money is used to comply with the law rather than paying lawyers.