Negotiating ADA Compliance Provisions in Commercial Leases

The Americans with Disabilities Act (ADA) has been the law for more than three decades, yet landlords and tenants routinely misunderstand who is responsible for ensuring that commercial properties are accessible. Those misunderstandings can lead to lawsuits, expensive retrofits, and strained landlord-tenant relationships. A carefully negotiated lease can eliminate much of this risk, but only if both sides know what to address.

1. Why ADA Compliance Belongs in Every Commercial Lease

Title III of the ADA requires that places of “public accommodation” and commercial facilities be accessible to individuals with disabilities. Compliance isn’t optional or one-time – it’s an ongoing obligation that can apply to both landlord and tenant.

2. Understanding the “Readily Achievable” Standard

For existing buildings, the ADA requires removal of architectural barriers that are “readily achievable” – that is, easily accomplishable without much difficulty or expense. Courts evaluate that standard based on the combined financial resources of the owner and occupant. So even if a small tenant believes improvements are too costly, a well-capitalized property owner’s resources may make barrier removal legally “achievable.” 

3. Common Lease Clauses that Create Confusion

a. “Tenant Shall Comply with All Applicable Laws”

This boilerplate phrase doesn’t automatically require a tenant to make structural ADA upgrades. Courts have rejected the argument that a generic “compliance with laws” clause transfers a landlord’s duty to retrofit inaccessible premises.

b. Indemnification Provisions

Many landlords attempt to require tenants to indemnify them for any ADA claims – even those arising from the landlord’s own failure to renovate. Most states (including Colorado) prohibit indemnity for one’s own negligence unless the lease states that intent clearly and expressly.

c. Repair and Maintenance Clauses

A “repair covenant” obligating a tenant to maintain the premises doesn’t necessarily extend to capital improvements or barrier removal. Courts have drawn a line between maintaining what exists and improving the property beyond its original condition.

4. Best Practices for Negotiating ADA Provisions

For Landlords

• Acknowledge Non-Delegable Duty: Recognize that public policy keeps ultimate responsibility with the property owner, even if costs are contractually shared.

• Audit and Disclose: Commission an accessibility survey before leasing and disclose known deficiencies.

• Allocate Costs by Control: Assign responsibility for common areas (parking, entrances, restrooms) to the landlord and interior improvements to the tenant.

• Update Standard Forms: Revise leases to clearly address ADA obligations.

  
  

For Tenants

• Inspect Before Signing: Don’t assume compliance because the space “looks” new. Inspect the premises with a knowledgeable contractor. Many barriers are overlooked. 

• Seek Representations and Remedies: Ask the landlord to warrant that the property complies as of the commencement date and agree to correct known deficiencies within a set time.

• Limit Cost Exposure: Cap responsibility for barrier removal to areas within the leased premises or to a defined dollar amount.

• Preserve Contribution Rights: Include mutual indemnification language so the tenant can recover from the landlord if the landlord’s inaction causes a violation.

  
  

5. Takeaway

ADA compliance is a continuing legal duty. Every commercial landlord and tenant should approach the lease as a partnership in accessibility. Clear, well-drafted ADA provisions allocating responsibility, cost, and indemnity are the most effective way to protect both sides from the expensive consequences of misunderstanding. And the best approach is to prevent litigation altogether through collaboration and clear drafting, joint inspections, written allocation of duties, and regular communication.