Bipartisan Bill Aims to Provide Real Property Owners Protection from ADA “Drive-By” Lawsuits

March 2, 2018

On February 15, 2018, the U.S. House of Representatives voted in favor of passing H.R. 620, also known as the ADA Education and Reform Act of 2017 (the “Bill”).  The Bill was sponsored by representatives on both sides of the aisle, and aims to protect real property owners from frivolous lawsuits.  Such lawsuits are sometimes colloquially referred to as “drive-by lawsuits” because eligible plaintiffs, or more often plaintiffs’ attorneys, file as many lawsuits as possible against property owners for often minor infractions to building accessibility requirements for disabled individuals under the Americans with Disabilities Act (the “ADA”).

In part, the Bill allocates funding for the creation of a program to educate state and local governments and property owners on their compliance duties under the ADA regarding accessibility requirements, and for the development of strategies for meeting these compliance duties.  At its core, the Bill creates a notice-and-cure period that must be met before a lawsuit may be filed against a property owner for failure to meet these requirements.

Under the Bill, before an individual is able to file a lawsuit against a property owner for the owner’s failure to remove an architectural barrier to access a public building, that individual must first provide written notice to the property owner of the existence of the barrier.  This notice must contain: (a) a description of the barrier which prevented the individual’s access to the public building, (b) the address of the building, (c) the specific sections of the ADA that are alleged to have been violated, (d) whether the individual requested assistance in removing the barrier, and (e) whether the barrier was temporary or permanent.

The property owner then has 60 days after that notice is given to provide that individual a written description of the course of action the owner plans to take to remedy the situation.  After that description is provided, the property owner has 120 days to completely remove, or make substantial progress in removing, that barrier to access.  If the removal is not accomplished by the property owner, the aggrieved individual may then file a lawsuit against the property owner for ADA noncompliance.

The Bill has been sharply criticized by disability rights activists who argue that it’s a thinly-veiled disguise at insulating businesses from liability at the cost of burdening the rights of disabled individuals.  They further argue that the Bill disincentivizes property owners from ensuring that their buildings are ADA-compliant.  Nevertheless, the effect of the Bill should help to reduce drive-by lawsuits by providing property owners an opportunity to bring their buildings into compliance prior to incurring legal fees and damages inherent in drive-by lawsuits.

Conor Leedom
Conor Leedom