Existing construction built before the implementation of applicable accessibility codes, such as the Americans with Disabilities Act (ADA), will likely be deficient in meeting those code requirements.
These deficiencies can be identified during an ADA Survey, which is often included within a Property Condition Assessment during due diligence.
So, if an ADA Survey identifies deficiencies, when does an existing building need to become compliant with ADA or other accessibility requirements?
Generally speaking, when alterations are made to areas of a building where the public has access, or improvements are made to a private space, such as a tenant improvement project, the ”path of travel to these alterations” must be brought into ADA compliance.
For tenant improvements, the owner or landlord is not required to bring the tenant space into compliance with accessibility codes, only the path of travel to that tenant space such as building entrances and public restrooms on the same floor as the tenant improvements. The tenant is responsible for access issues in his or her space. Tenant improvements not in the tenant space are building alterations.
The ADA and the International Building Codes require the Owner to make accessibility improvements according to the construction cost of alterations. These improvements include an accessible entrance to the facility, path of travel (for example door and corridor widths), public restrooms, public phones and drinking fountains (if any are located along the public corridor).
The statutes that govern accessibility have language that defines how much must be spent on making the property more accessible as a function of how much the alteration will cost.
The US Department of Justice (DOJ) administrates the issues in jurisdictions where the ADA Guidelines have been adopted. Alterations made to provide an accessible path of travel to the altered function area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the function area. The owner will be required to spend the entire 20% additional cost to make the Path of Travel. A list of priorities is included in the DOJ Guidelines.
Similarly the International Building Code has language on building alterations. Where an alteration affects the accessibility to, or contains an area of “primary functions,” the route to the primary function area shall be accessible. The costs of providing the accessibility route are not required to exceed 20 percent of the costs of the alterations affecting the area of primary functions.
The final decision on the extent of accessible modifications lies with the local Building Departments. They will be able to discuss the difficulties that could arise in providing accessibility compliance. For example, in an older high rise building a “stack” of restrooms may have structural columns in some of their walls making an unreasonable hardship to provide the turning radius required. The building department may instead accept two accessible unisex bathrooms in a more feasible location.
Many states and some large cities have adopted the International Building Code in lieu of their building code. If a detailed ADA Survey is included within a Property Condition Assessment, it will be necessary to make a determination of which building code applies in order to reference accessibility issues properly.