The ADA Grandfathering Myth: Why Your Pre-1990 Property Isn't Exempt

According to the ADA, Is There a Grandfather Clause?

If you own or operate a building that was constructed before the Americans with Disabilities Act (ADA) was passed in 1990, you might think you're "grandfathered" from accessibility requirements.

This is one of the most dangerous and costly misconceptions in property management and business operations.

The Bottom Line: There Is NO Grandfather Clause

The ADA contains no grandfathering provisions for buildings constructed before 1990. This means that regardless of when your property was built—whether it was constructed in 1776 or 1989—if it serves the public, you must comply with current accessibility standards.

Understanding Title III Requirements for Existing Buildings

Title III of the ADA specifically addresses public accommodations, which include restaurants, retail stores, hotels, theaters, medical offices, schools, and countless other businesses that serve the public. The law explicitly states that discrimination includes "failure to remove architectural barriers... in existing facilities" unless removing those barriers is not "readily achievable."

What "Readily Achievable" Means

The ADA defines readily achievable as modifications that are "easily accomplishable and able to be carried out without much difficulty or expense." This standard is intentionally flexible and considers factors such as:

• The nature and cost of the required barrier removal

• The overall financial resources of the facility

• The number of people employed at the site

• The effect on expenses and resources

Common Examples of Readily Achievable Improvements

According to the Department of Justice, readily achievable barrier removal often includes:

• Installing ramps

• Making curb cuts in sidewalks and entrances

• Repositioning shelves, tables, or vending machines

• Creating designated accessible parking spaces

• Lowering telephones

• Adding accessible door hardware

The "Safe Harbor" Exception: Limited Protection for Some Elements

While there's no grandfathering, the ADA does provide limited protection called "safe harbor" for certain building elements. This provision applies only to elements that were in compliance with the 1991 ADA Standards and have not been altered since March 15, 2012.

Important limitations of safe harbor:

• It applies on an element-by-element basis

• It doesn't apply to recreational facilities like swimming pools, play areas, or exercise equipment that weren't covered in the 1991 standards

• If you choose to alter any element covered by safe harbor, it must then comply with current 2010 ADA Standards

Your Ongoing Legal Obligations

Immediate Requirements

Even if your building predates the ADA, you have immediate obligations to:

1. Remove readily achievable barriers - This is an ongoing obligation, not a one-time requirement

2. Provide program accessibility - Modify policies and procedures to ensure equal access

3. Allow service animals - Even with "no pets" policies

4. Provide reasonable accommodations - Such as sign language interpreters when necessary

   
   

Alteration Triggers Additional Requirements

If you make any alterations to your pre-1990 building (defined as almost any construction, repairs, or renovation affecting usability), you must:

• Bring the altered area into full compliance with current standards

• Improve the "path of travel" to the altered area

• Upgrade restrooms, signs, and drinking fountains serving the altered area

  
  

The Financial Reality: Compliance vs. Lawsuit Costs

Waiting to be sued is an expensive strategy. If your business faces an ADA lawsuit, you could be responsible for:

• Your own legal fees and costs

• The plaintiff's legal fees and costs

• Statutory damages (up to $4,000 per violation in California)

• The cost of required improvements

• Potential additional damages if someone is injured

Many insurance policies don't cover ADA violations, leaving you financially exposed.

California Provides Some Relief for Proactive Businesses

California's Construction-Related Accessibility Standards Compliance Act (CRASCA) offers reduced damages for businesses that take proactive steps:

• $1,000 instead of $4,000 in damages if you hire a Certified Access Specialist (CASp) and correct violations within 60 days

• $2,000 instead of $4,000 for small businesses that correct violations within 30 days without a CASp

• Grace periods for small businesses following CASp inspections

What You Should Do Right Now

1. Accept Your Legal Responsibility

Treat ADA compliance like any other legal requirement—such as fire safety or health codes.

2. Get a Professional Assessment

Hire a Certified Access Specialist (CASp) to evaluate your property and identify violations. This investment can significantly reduce your legal exposure.

3. Create an Improvement Plan

Start with simple, low-cost improvements that address the most common barriers. Many accessibility improvements—like adding signs, restriping parking, or changing door hardware—are relatively inexpensive.

4. Prioritize Your Improvements

Focus on barriers in this order:

1. Entry access - Getting people through the door

2. Access to goods and services - Main business areas

3. Restroom access - If restrooms are provided to the public

4. Remaining barriers - Secondary improvements

The Bigger Picture: It's Good Business

Rather than viewing accessibility as a burden, consider the business opportunity. Making your business accessible opens it to a significant market segment.

Conclusion

Your pre-1990 building is not grandfathered from ADA requirements. The law requires you to remove readily achievable barriers regardless of when your building was constructed. The question isn't whether you need to comply—it's how quickly you can get started and how much protection you can build through proactive compliance efforts.

Don't wait for a lawsuit to force your hand. Take control of your accessibility obligations now, protect your business from costly legal exposure, and open your doors to the millions of potential customers with disabilities who are currently unable to access your services.

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.