At the ICSC conference in Vegas there's been a lot of discussion about the importance of retail properties complying with the requirements of the Americans with Disabilities Act (ADA). Retail is essentially a public space and as such, accessibility issues are highly scrutinized and at risk of lawsuits if found not to be in compliance. To avoid legal implications, I'm seeing that retail investors are increasingly committing to thorough accessibility reviews that often go above and beyond standard ADA regulations.
Retail Accessibility requirements – what's different?
Accessibility requirements for retail properties are two-fold, concerning both external issues (such as building access and car parking) and the configuration of interior space to ensure that everyone has equal access to dressing rooms, sales counters etc. Importantly, compliance can be affected by a change of tenant: different business uses have different accessibility requirements, and modified shop fit-outs or entrances may bring about new concerns.
To determine if a retail space is in compliance, the retail investor (or owner/operator) should perform a a property conditional assessment (PCA) that includes an Accessibility Survey - often referred to as an ADA Survey (although technically speaking this term doesn't reflect various other accessibility codes that may also apply to a property). Accessibility codes stipulate that “readily achievable” improvements (within the client's physical or financial restraints) are made to ensure equal accessibility. My advice to retail investors is to minimize exposure by putting together a written “barrier removal plan” which identifies and outlines how to deal with any non-compliant accessibility issues.
Only a thorough accessibility survey that considers ADA as well as all other applicable federal and local accessibility codes will provide retail investors with a comprehensive and defensible compliance plan.
What's considered a thorough accessibility review?
An ADA survey or Accessibility review is out of scope for a PCAs as defined by ASTM E2018. While many due diligence firms perform at least a basic accessibility assessment as part of the property assessment as standard practice, it is technically an add-on item. When ordering the report, retail investors should be careful to ensure an accessibility survey is included. ADA surveys can include varying levels of detail. ASTM E2018 defines 3 “tiers”:
Tier I survey includes:
- A visual assessment of path of travel to identify physical barriers
- Discussion of adequacy of the ADA-compliant parking spaces (visual assessment only, no measurement or counting required)
- Determination if public toilets, guestrooms and elevators appear to have been designed and constructed to meet ADA accessibility requirements.
Tier II is a more comprehensive assessment of items contained within the ASTM E2018 checklist for accessibility surveys. The Tier II ADA survey requires some basic measurements of parking spaces, doorway widths etc.
Tier III is the most comprehensive accessibility survey, and includes measuring or confirmation of all accessibility features. This survey provides greatest detail that will help to guide adjustments or renovations needed to achieve compliance.
All these surveys can be performed as part of a PCA, or as an individual assessment. See this older Globe St blog for more information on the various survey tiers.
Accessibility Survey to protect against liability
How thorough the investigation should be depends on the circumstances and the end-user of the report. Again, because retail is a publically used space that has relatively high exposure to liability, and often has multiple tenants with different legal responsibilities for accessibility, I generally advise investors to request a more thorough ADA survey. Retail investors are ultimately responsible for ensuring that the property is or becomes compliant, and a detailed accessibility assessment and plan for correcting compliance issues is critical to reducing investment risk.
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