|Article - Landlord & Tenant|
Counting the Cost of Access - The Provisions of the Disability Discrimination Act
As many retailers and businesses gear up to ensure they comply with the access implications of the Disability Discrimination Act ("DDA"), which came into force on 1 October 2004, there are inevitably those who have yet to take the necessary steps. Whilst the DDA is not primarily concerned with property, the fact that it will be unlawful to discriminate against disabled persons has implications for most commercial property owners and occupiers.
the majority of the DDA’s life to date, there has been a duty on a
“provider of services” to ensure reasonable steps are taken to make
its services accessible to disabled people.
This does not necessarily mean that changes need to be made to
premises. What is required is “reasonable adjustment” to ensure that
people with a disability are not prejudiced in buying goods and services
from a particular organisation. This
can usually be dealt with in the way you conduct your business rather than
making physical changes to a building.
the new duty requires service providers to take “all reasonable steps”
to “remove a physical barrier, which may make it difficult for a
disabled person to access a service”. If you have not yet done so, it is
vital that you seek advice to see if your premises are affected.
under the DDA falls on “occupiers” as opposed to the owners of a
building. Accordingly, where a
building is subject to a Lease, it is the Tenant as opposed to the
Landlord who must ensure compliance.
duties under the DDA leave much open for negotiation between Landlords and
Tenants before a lease is granted. Depending
on the bargaining position, the Tenant may seek to place the cost of his
compliance on to the Landlord to ensure that adequate works are undertaken
by him prior to entering into a formal lease.
a Tenant might negotiate a lengthy rent-free period prior to entering into
a lease, where his business requires extensive changes to a property.
it is not possible to ascertain responsibility, it is important to note
that a Tenant cannot argue that he is prevented from complying by the
terms of a particular lease. The
DDA contains specific provisions, which override any restrictions on
alterations in a lease. Landlords cannot withhold consent for works
unreasonably and must allow a Tenant to effect works to ensure compliance.
a multi-let building, with more than one occupier, there are likely to be
common areas, which may be used by disabled employees or customers.
The DDA does not expressly deal with such areas. Responsibility to
ensure that such areas are accessible by disabled persons (if needed) will
usually fall on the landlord, but remain recoverable from the tenants
under service charge provisions.
Tenants should ensure that the costs of any such service charges are allocated fairly between the occupiers of the building who require disabled access to their services and those that don’t.
Article First Published: 1 May 2004
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