Pre-ADA Buildings & ADA Lawsuits: What Property Owners Must Know
Historic and pre-ADA properties are not exempt from Title III of the Americans with Disabilities Act. Businesses in these buildings must still remove physical barriers when "readily achievable," though the law sometimes allows alternative compliance methods when standard modifications would threaten a building's historic character. Owners who ignore this obligation remain fully exposed to ADA lawsuits and monetary demands.
Many business owners assume that operating out of an older building — one constructed decades before the ADA became law in 1990 — offers some form of legal protection against accessibility lawsuits. This assumption is incorrect, and it's one of the most common misconceptions that leads small business owners into costly litigation.
If you've received a demand letter or lawsuit alleging that your historic storefront, converted warehouse, or pre-1990s building violates Title III of the ADA, you need to understand exactly where the law stands. Here, we break down how the ADA treats older and historic properties, what "readily achievable" barrier removal actually means, and what steps you can take to defend your business while protecting your bottom line.
Does the ADA Apply to Buildings Built Before 1990?
Yes. Title III of the ADA applies to all places of public accommodation, regardless of when the building was constructed. There is no blanket exemption for older buildings. The ADA was designed specifically to address the fact that most existing commercial structures — at the time of the law's passage in 1990 — were not built with accessibility in mind.
Instead of exempting pre-ADA buildings, the law created a different standard for them. Businesses operating in existing facilities (as opposed to new construction or alterations) must remove architectural barriers only when doing so is "readily achievable." This is a lower bar than the strict compliance standard applied to new construction, but it is still an active legal obligation — not a free pass.
What Does "Readily Achievable" Mean Under the ADA?
"Readily achievable" means a barrier removal can be accomplished without much difficulty or expense, considering factors such as:
The nature and cost of the modification
The overall financial resources of the business or facility
The impact of the modification on business operations
The geographic separation and relationship of the site to any parent entity
This is a fact-specific, case-by-case analysis. A single-location coffee shop with limited revenue may have different obligations than a location that's part of a large regional or national chain. Courts and plaintiffs' attorneys will scrutinize your specific financial and operational circumstances, so vague claims of "we can't afford it" rarely hold up without documentation.
Are Historic Properties Exempt From ADA Compliance?
No, but they do receive special consideration. Under Title III regulations (28 C.F.R. § 36.405), a building listed on or eligible for listing on the National Register of Historic Places, or designated as historic under state or local law, may qualify for alternative compliance methods if standard accessibility modifications would "threaten or destroy the historic significance" of the property.
This provision does not eliminate the obligation to improve accessibility. Instead, it allows historic property owners to use alternative measures when standard barrier removal isn't feasible. Examples include:
Providing a portable ramp instead of a permanent ramp modification that would alter a historic façade
Widening a single, main entrance rather than modifying multiple historic doorways
Relocating services or displays to an accessible location within the facility rather than retrofitting historic areas
Installing accessible signage directing patrons to an alternate accessible entrance
What Is the "Historic Exception" Process?
To claim the historic exception, the property owner or responsible entity generally must consult with the State Historic Preservation Officer (SHPO) or other applicable review body. If it's determined that standard compliance would threaten the building's historic features, the entity should implement the alternative methods listed in the regulations before concluding that no action is required.
Critically, this determination should ideally happen before a lawsuit is filed, not after. Businesses that wait until they've been served with a complaint to investigate historic exceptions put themselves in a much weaker defensive position.
What Are the Most Common ADA Barriers Cited in Historic Building Lawsuits?
Plaintiffs' attorneys who focus on Title III litigation frequently target the same categories of physical barriers, whether the property is historic or not. Common allegations include:
Inaccessible entrances: Steps without ramps, doors too narrow for wheelchairs, or excessive door-opening force
Parking violations: Lack of designated accessible parking spaces, improper signage, or non-compliant van-accessible spaces
Restroom barriers: Insufficient maneuvering clearance, improperly mounted grab bars, or inaccessible fixtures
Interior path of travel issues: Aisles too narrow for wheelchair passage, obstructed routes, or uneven flooring transitions
Counter heights: Service counters that exceed the maximum accessible height requirements
For historic properties, entrance and restroom modifications are the most frequently contested issues, since these often require the most invasive structural changes.
Can a Business Be Sued for ADA Violations Even If It Never Received a Complaint?
Yes. Title III does not require a plaintiff to have complained to the business before filing suit. Many ADA lawsuits are filed by "tester" plaintiffs — individuals who visit or review a business specifically to identify accessibility barriers — often without any prior notice to the property owner. This is one reason business owners in older buildings are frequently blindsided by litigation despite having operated for years without incident.
How Should Business Owners in Historic or Pre-ADA Buildings Respond to a Lawsuit?
If your business has been sued for Title III barrier violations, the age or historic status of your building does not eliminate your legal exposure, but it can become a meaningful part of your defense strategy. Effective responses typically include:
Documenting the building's historic status, including registration or eligibility for listing on national, state, or local historic registers.
Conducting a professional accessibility audit to identify which barriers exist and which modifications are realistically achievable.
Evaluating the "readily achievable" standard as applied to your specific financial and operational circumstances.
Exploring alternative compliance methods where standard modifications would compromise historic elements.
Consulting an experienced ADA defense attorney before responding to the lawsuit or engaging directly with opposing counsel.
Choose an attorney with specific experience in Title III defense if your case involves complex questions about historic designation, since general litigation counsel may not be familiar with the nuances of 28 C.F.R. § 36.405 or how courts in your jurisdiction have applied it.
Protecting Your Business Starts Before the Lawsuit Arrives
Operating out of a historic or older building carries unique accessibility challenges, but it doesn't exempt you from the obligations of the ADA. The businesses that fare best in this legal landscape are the ones that proactively audit their properties, document their compliance efforts, and understand exactly where the "readily achievable" and historic exception standards apply to their specific situation.
If your business has already been served with an ADA lawsuit or demand letter, don't wait to seek legal guidance. An experienced ADA defense attorney can evaluate your building's status, assess the barriers at issue, and build a defense strategy designed to resolve legal risks while protecting both your finances and your reputation.
Frequently Asked Questions
Do I have to make my historic building fully ADA compliant? Not necessarily. If a standard modification would threaten your building's historic significance, the ADA allows alternative compliance methods instead of full structural changes, provided you consult with the appropriate historic preservation authority.
How much does ADA barrier removal typically cost for a small business? Costs vary widely depending on the barrier and building. The "readily achievable" standard accounts for a business's financial resources, meaning obligations differ significantly between a small independent shop and a larger chain location.
Can I be sued even if no customer ever complained about accessibility? Yes. Many Title III lawsuits are filed by testers who identify barriers without notifying the business first. Lack of a prior complaint does not prevent a lawsuit from being filed.
What happens if I lose an ADA Title III lawsuit? Outcomes typically require the business to remediate the barriers, pay its own attorney's fees, cover the plaintiff's attorney's fees, and in some states, pay statutory damages to the plaintiff.
Is it worth fighting an ADA lawsuit instead of settling? It depends on the facts of your case. An experienced defense attorney can evaluate whether defenses like lack of standing, mootness, or the historic building exception apply before recommending whether to settle or litigate.
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