The Americans With Disabilities Act (ADA) was enacted in 1990. At the time, no one in the self-storage industry thought the ADA applied much to their facilities, except under Title III of the Act, which deals with public accommodations. If you built a storage facility after 1990, it would need an office that was accessible to those with all disabilities. This includes wheelchair access.
In 2010, the U.S. Department of Justice began floating around modifications to the ADA, which included new and specific design and building requirements. Again, no one was certain if these requirements applied to our industry because most of what constitutes a storage facility isn’t an area of “public accommodation.”
When the standards went out for public comment, without pressing too hard, storage-industry leaders began to inquire whether the Justice Department believed these design standards would apply to self-storage properties. If so, how many years back would the obligation go before a facility was “grandfathered” out of the requirement? It’s my understanding that an exact answer was never determined for various reasons.
For the purposes of this article, assume ADA requirements apply to your facility, especially if it was built or issued a Certificate of Occupancy, or you added new buildings, since March 15, 2012. These requirements deal with scoping and dispersion. Let’s take a look at what each means and how you can ensure your property is compliant.
Scoping and Dispersion
Scoping relates to the number of units you’re required to have that are accessible to customers with disabilities. If your property has 200 units or fewer, 5 percent of the units must comply. If the site has more than 200 units, the number jumps to 10 units plus 2 percent.
The dispersion requirement means you must have spread the required units among your various unit types and styles. If your property has all 10-by-10, non-temperature-controlled units, that’s easy. However, if you have 15 different unit sizes, some temperature-controlled and some not, then you’d have to do your best to spread the required number of units across these kinds.
That doesn’t mean you must make more units accessible than is required under scoping. You don’t have to build additional disability-accessible units to have one of every type and style. Even if you have many varieties, you still only have to hit the number required under scoping.
The problem is that making a unit accessible is trickier in self-storage than in other types of businesses. When we talk about accessibility, we’re not simply discussing the ability to lift a door and have the resistance meet the ADA requirements for pressure or weight. The entire path to the unit must be accessible. This includes the amount of slope permitted in the drive aisles. The requirement is 1 inch per foot of rise or fall. Many storage facilities have sloped drive aisles to move water away from the buildings, which may violate the ADA.
Also, there’s the accessibility of the gate keypad, which must be a regulated height, as well as accessibility to the latch, and the ability and ease of opening and closing the unit door. Your management office as well as any restrooms must also be ADA-compliant.
The Dangers of Advocacy
An important danger of which you should be aware is advocacy groups that conduct “drive-by” ADA shops at various businesses, including self-storage facilities. While many of these groups do great work for the people they serve, unfortunately, there are some whose mission isn’t quite so noble.
These organizations operate under many names and appear to be working for people with disabilities. They’ll drive by your facility, notice what they perceive to be a deficiency, pretend to be interested in renting a unit, and take measurements. If they find a defect, rather than asking you to correct it, they’ll bring an ADA lawsuit against you. This could happen even if no disabled person is attempting to rent with you or having trouble accessing your facility or his storage unit.
Many operators rent units to disabled people who have no trouble getting over the rain lip in front of their unit or traveling the drive aisle, even if it has a little more slope than permitted. That doesn’t matter to these groups. They’re simply looking for lockstep compliance and a payout. To fulfill their mission, they actively seek violations and quickly make claims. They don’t need to have an injured party to do so. They bring the lawsuit against you for ADA violations and seek large sums in damages as well as correction.
While there’s nothing we can do to stop these groups, even those that are less than legitimate, forewarned is forearmed. If you have questions about whether your property is disability-accessible—or even if it should be—it’s worth investing time and money for a review by an access specialist or architect. This way, if an agency or advocacy group does a drive-by and decides to target you, you’re ready to defend yourself instead of simply becoming the next unwitting shakedown victim.
I know these words are harsh, but to be on the receiving side of one of these claims when there’s no actual harmed party will shake your beliefs and cause you to question your faith in our legal system. Rather than finding yourself in that situation, be prepared and compliant (if necessary), and avoid this rather nasty surprise that many self-storage operators nationwide have received.
This column is for the purpose of providing general legal insight into the self-storage field and should not be substituted for the advice of your own attorney.
Jeffrey Greenberger is a partner in the Cincinnati law firm of Greenberger & Brewer LLP. Licensed to practice in Kentucky and Ohio, he focuses primarily on representing the owners and operators of commercial real estate, including self-storage owners and operators. His website, www.selfstoragelegal.com, contains legal opinions and insights as well as an article archive. To reach him, call 513.698.9350; e-mail [email protected].