New Construction, Alterations, and Existing Facilities: What Actually Has to Be Fixed?

One of the most common questions we get from property owners and business operators is some version of: "My building is old. Do I really have to fix everything?"

The honest answer is: it depends on which of three legal categories your project falls into. The ADA and the California Building Code (CBC) treat new construction, alterations, and untouched existing facilities very differently. Once you know which bucket you're in, the answer to "what must be fixed" gets much clearer.

Let's walk through it in plain English — with the actual code citations, because that's how we do things.

The Three Buckets

Bucket 1: New Construction — The Strictest Standard

If you're building from the ground up, everything must comply. Period.

·       Federal: 2010 ADA Standards for Accessible Design (28 CFR 36.401 for Title III; 28 CFR 35.151 for Title II)

·       California: 2025 CBC, Title 24, Part 2, Chapter 11B (for public accommodations and commercial facilities)

There is essentially one narrow escape valve in new construction: structural impracticability (28 CFR 36.401(c)) — and it's reserved for rare terrain situations, like building over marshland. If you're constructing a normal building on a normal lot, assume 100% compliance with the current code.

Bucket 2: Alterations — Strict, But Scoped

An "alteration" is a change to a building that affects or could affect its usability — remodels, renovations, rehabilitation, reconstruction, changes in structural parts, or rearrangement of walls and full-height partitions (28 CFR 36.402(b)). Normal maintenance, reroofing, painting, or wallpapering are not alterations by themselves.

The rule: Whatever you alter must comply with the current standards. Under the 2010 ADA Standards, Section 202.3:

"Where existing elements or spaces are altered, each altered element or space shall comply with the applicable requirements of Chapter 2."

And yes — in California, that means the 2025 CBC Chapter 11B. When you pull a permit today, the building department enforces the code edition in effect at the time of your permit application. If you remodel your restroom in 2026, that restroom must meet 2025 CBC 11B — not the code from when the building was built.

Plus the path of travel obligation. If your alteration affects an area containing a primary function (a sales floor, dining area, office area — the reason the building exists), you must also make the path of travel to that area accessible, including the restrooms, telephones, and drinking fountains serving it (28 CFR 36.403; CBC 11B-202.4). This is how a kitchen remodel can legally trigger parking, entrance, and restroom upgrades.

The 20% cap. Path of travel upgrades are capped when they become "disproportionate" — defined as exceeding 20% of the cost of the alteration to the primary function area (28 CFR 36.403(f); CBC 11B-202.4, Exception 8). You spend up to 20% on path of travel improvements in a priority order (accessible entrance first, then accessible route, then restrooms, and so on) and document why you stopped where you did. The altered area itself, though, gets no cost cap — it must comply.

Bucket 3: Existing Facilities You Never Touched — The "Readily Achievable" Standard

Here's the part most owners don't realize: even if you never pull a permit, you are not off the hook under the ADA.

Title III requires places of public accommodation to remove architectural barriers in existing facilities "where such removal is readily achievable" — defined as "easily accomplishable and able to be carried out without much difficulty or expense" (42 U.S.C. § 12181(9); 28 CFR 36.304(a)). This is a continuing obligation. It existed on January 26, 1992, and it exists today.

Factors that determine what's readily achievable include the nature and cost of the fix, the financial resources of the site and any parent entity, and the impact on operations.

A barrier that isn't readily achievable for a small independent shop might be readily achievable for a national chain in the identical building.

The regulation gives examples of readily achievable barrier removal (28 CFR 36.304(b)): installing ramps, making curb cuts, repositioning shelves and telephones, widening doors, installing grab bars, creating designated accessible parking, and more.

Important California reality check: The CBC is a construction code — it applies when you build or alter. But California's civil rights laws (Unruh Civil Rights Act, Civil Code § 51; Civil Code § 54; disability access statutes at Civil Code §§ 55.51–55.545) make ADA violations independently actionable in state court with statutory damages. So "the building department never made me fix it" is not a defense in a lawsuit. This is exactly the exposure a CASp inspection is designed to identify and manage.

Is There a Safe Harbor? (Federal: Yes. CBC 11B: No.)

The ADA safe harbor is real — but narrow. Under 28 CFR 36.304(d)(2), elements that were built or altered in full compliance with the 1991 ADA Standards do not need to be retrofitted to reflect the incremental changes in the 2010 Standards — until you alter that element. Example: the 1991 Standards allowed a light switch at 54 inches for a side reach; the 2010 Standards lowered it to 48 inches. If it complied in 1995, you can leave it alone.

Two big limits:

1.      Safe harbor dies the moment you alter the element. Touch it, and it must meet the current standard.

2.     Safe harbor does not apply to "supplemental" requirements — element types that didn't exist in the 1991 Standards (swimming pools, play areas, exercise equipment, golf and boating facilities, etc.). Those must be addressed to the extent readily achievable regardless.

There is no equivalent safe harbor in CBC Chapter 11B. California never adopted a 1991-to-2010 safe harbor provision. When you alter an element under a California permit, the 2025 CBC governs that element — and where the CBC is more stringent than the 2010 ADA Standards (and it often is: parking counts, EVCS, signage, dimensional requirements), the CBC controls for code enforcement in California, while the ADA continues to apply as a separate federal civil rights obligation. Complying with the stricter of the two is the only defensible position.

Real-World Scenario 1: Stairs at the Entrance of a Retail Store

A retail store with steps at its only entrance, in a building that's never been altered, is the classic barrier removal case.

The analysis:

1.      Is a ramp readily achievable? Installing ramps is literally the first example on DOJ's barrier removal list (28 CFR 36.304(b)(1)). If there's room for a compliant ramp (max slope 1:12 = 8.33%, per 2010 ADAS 405.2 and CBC 11B-405.2) and the cost is reasonable relative to the business's resources — it likely must be done.

2.     If a full ramp isn't achievable, barrier removal measures may still be required to the extent they can comply — and if full compliance isn't readily achievable, measures that don't fully comply are permitted as barrier removal so long as they don't pose a safety risk (28 CFR 36.304(d)(3)).

3.     If physical removal truly isn't readily achievable, the business must make its goods and services available through alternative methods to the extent those are readily achievable (28 CFR 36.305): curbside service, home delivery, retrieving merchandise for the customer.

Alternatives are the floor, not the goal. A store cannot skip a feasible ramp and jump straight to "we'll bring items outside." Alternatives become the lawful answer only when the physical fix fails the readily achievable test — and that determination should be documented, because it will be challenged.

Real-World Scenario 2: The Restaurant With Stairs Inside

A restaurant provides an accessible entrance and accessible dining at the ground level, but has a raised dining area up two flights of stairs. Does the raised area have to be accessible?

It depends on the bucket:

·       New construction: Yes. Both 2010 ADAS 206.2.5 and CBC 11B-206.2.5 require an accessible route to all dining areas, including raised and sunken dining areas. No "the good seats are downstairs too" argument in new construction.

·       Alterations: The 2010 Standards, Section 206.2.5, Exception 2, provides: "In alterations, an accessible route shall not be required to existing raised or sunken dining areas... where the same services and decor are provided in an accessible space usable by the public and are not restricted to use by people with disabilities." So if you remodel the ground floor, you generally don't have to add an elevator to the existing mezzanine — provided the accessible level offers the same menu, same service, same ambiance, and isn't a segregated "accessible section."

·       Existing facility, never altered: Readily achievable analysis. Installing an elevator or lift to serve a mezzanine is rarely "easily accomplishable without much difficulty or expense" for a typical restaurant — so as long as equivalent service exists on the accessible level, the raised area typically may remain as-is.

Another point — "if they can't go up the stairs, why would it matter?" — the law essentially agrees, but only when the experience is genuinely equal. The test is same services and decor. If the rooftop level has the view, the bar, or the live music and the ground floor doesn't, the equivalence argument collapses. That's a factual question we evaluate site by site.

Real-World Scenario 3: The Sloped Site That Follows the Street

What about a walkway or entrance path that slopes because the entire property follows the natural grade of the street? Is that "technically infeasible"?

First, the actual definition. "Technically infeasible" means, with respect to an alteration:

"...something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements." (2010 ADAS Section 106.5; substantially mirrored in CBC Chapter 2 and 11B-202.3)

A site locked into the street grade is a textbook "existing physical or site constraint." If the sidewalk and street sit at a slope, and there is physically no room on the lot to develop a compliant accessible route (running slope ≤ 5% for a walk, or ≤ 8.33% with full ramp features — handrails, landings, edge protection per 2010 ADAS 405 / CBC 11B-405), a technical infeasibility argument may be legitimate.

But two critical caveats:

1.      Technical infeasibility is an alterations concept — it never excuses doing nothing. 2010 ADAS 202.3, Exception 2: where compliance is technically infeasible, "the alteration shall comply with the requirements to the maximum extent feasible." If you can't get 8.33%, get as close as the site allows, add compliant handrails and landings where possible, and document the constraint with measurements.

2.     It must actually be infeasible — not just expensive or inconvenient. "A ramp would cost a lot" is a disproportionality/readily-achievable argument, not technical infeasibility. Inspectors, plaintiffs' experts, and courts know the difference. So do we.

Also note: for new construction, there is no technical infeasibility exception. You design the site to work.

The Gray Zone: Other Hard Calls We See Constantly

These are the situations where owners genuinely struggle to decide "fix it or leave it" — and where a documented CASp analysis earns its keep:

·       A restroom that met 1991 ADAAG but misses 2010/CBC dimensions. Federal safe harbor may protect it — until you remodel it. Under a California permit, the current CBC applies to whatever you touch. If it's technically infeasible to enlarge, CBC 11B-213.2, Exception 3 may permit alternatives such as a single accessible unisex toilet room in the same area and on the same floor. This does not apply to "limited alterations"; it applies when you decide to do a remodel. Replacing a grab bar is not going to trigger an entire remodel of the restroom.

·       Parking restriping. Restriping a lot is generally treated as an alteration of the parking facility — which pulls the striping, signage, access aisles, and EVCS requirements into the current 2025 CBC 11B (11B-208, 11B-502, 11B-812). Many owners restripe casually and unknowingly create documented, dated evidence of a non-compliant "alteration." Parking restriping does not initate path of travel upgrades inside.

·       A 2-inch step at a tenant suite door. Almost always readily achievable to fix with a small ramp or grinding/beveling — this is low-cost, high-exposure, and near the top of any barrier removal priority list (DOJ priorities at 28 CFR 36.304(c): entrance first) unless there are site constraints

·       Door hardware, mats, and thresholds. Cheap fixes, frequently litigated. Readily achievable almost by definition.

·       Historic buildings. The California Historical Building Code (Title 24, Part 8) provides regulatory flexibility for qualified historic buildings, and federal rules permit alternative access where compliance would threaten or destroy historic significance (28 CFR 36.405; 35.151(b)(3)). This is its own analysis — don't assume "old" means "historic."

·       Second-floor offices in a small building. Both federal and state law exempt certain private buildings under three stories or under 3,000 square feet per story from the elevator requirement (2010 ADAS 206.2.3, Exception 1; CBC 11B-206.2.3 — with California's narrower exception applying only where a reasonable portion of the public facilities are accessible at grade). But the exemption never applies to shopping centers, health care providers' professional offices, or transit facilities — and everything on the ground floor must still comply.

When Is Alternative Access the Right Answer?

Alternative methods of access are legally appropriate in a defined set of situations — not whenever a fix is inconvenient:

1.      Barrier removal is not readily achievable in an existing, unaltered facility → provide goods and services through readily achievable alternative methods (28 CFR 36.305).

2.     Alterations where full compliance is technically infeasible → comply to the maximum extent feasible; equivalent facilitation may be used where it provides substantially equivalent or greater access (2010 ADAS 103; CBC 11B-103).

3.     Existing raised/sunken dining areas in alterations → same services and decor in an accessible space (2010 ADAS 206.2.5, Exception 2).

4.     Historic properties where physical access would threaten or destroy historic significance (28 CFR 36.405; CHBC).

If your situation isn't on that list, the presumption is that the barrier gets fixed.

A Simple Decision Framework

When you're staring at a barrier and can't decide, ask these questions in order:

1.      Was it built or altered under a permit? If yes → it should already comply with the code in effect at that time. Non-compliance with the code of record is a construction defect, not a grandfathered condition.

2.     Am I altering it now (or recently)? If yes → altered elements must meet the 2025 CBC 11B and 2010 ADAS, plus path of travel upgrades up to the 20% disproportionality cap.

3.     Does the element comply with the 1991 ADA Standards? If yes, and it's untouched → federal safe harbor may apply. Remember: no CBC equivalent, and no protection for supplemental elements.

4.     If it's never been altered and doesn't qualify for safe harbor: Is removal readily achievable? If yes → fix it, following DOJ's priorities: (1) get people in the door, (2) access to goods/services, (3) restrooms, (4) everything else (28 CFR 36.304(c)).

5.     If it's not readily achievable: Provide alternative access, document the analysis, and revisit it periodically — readily achievable is a moving target that changes as your resources change.

And one principle that resolves half the confusion: "grandfathered" is not a thing under the ADA. There is safe harbor (narrow), technical infeasibility (narrow), and readily achievable barrier removal (ongoing). Every barrier in your facility lives somewhere in that framework — the job is figuring out where, and writing it down before someone else does it for you in a demand letter.

The Bottom Line

·       New construction: full compliance with 2025 CBC 11B and the 2010 ADA Standards. No excuses, one rare exception.

·       Alterations: what you touch must meet current code, plus path of travel to primary function areas up to 20% of project cost. Technical infeasibility is a narrow, documented exception — never a pass to do nothing.

·       Existing, untouched facilities: continuing federal duty to remove barriers where readily achievable, with alternative access as the fallback — and full Unruh Act damages exposure in California for what gets ignored.

The difference between a defensible property and a lawsuit magnet usually isn't the building — it's the documentation. A CASp inspection establishes exactly which bucket each element falls into, what must be fixed, what can lawfully remain, and in what priority order — and in California, it provides the qualified defendant benefits of Civil Code § 55.53 et seq., including potential damages reduction and a 90-day stay of litigation.

Not sure which bucket your property is in? That's literally what we do. Contact Corey and Partners for a CASp inspection and get a defensible, prioritized answer instead of a guess.

DISCLAIMER: The information provided in this post is for informational purposes only and does not constitute legal advice. Please consult a qualified attorney or consultant for advice tailored to your situation.