Making changes to property - who pays?
SOURCE: BUILDING FOR LEISURE, AUGUST 2003
No one would doubt that disabled people are entitled to the same treatment as everyone else when going about their daily lives. Now, anyone providing services to the public – such as leisure centres, hotels and bars – is required by law not to discriminate against disabled people.
The Disability Discrimination Act 1995 (DDA) has been put in place by Parliament to ensure that employers, anyone providing goods, facilities and services to the public and those letting or managing premises have a legal duty to make sure that disabled persons are not discriminated against and have the same access to services as able bodied persons.
It is estimated that the cost of complying with the DDA cold reach as much as £1billion, mainly incurred by taking the reasonable steps to change procedure or physical features of a service that make it unreasonably difficult for a disabled person to utilise it.
Tenants and landlords can fall under the remit of the DDA. For example, if a tenant provides a service the public or is an employer or if a landlord has responsibility for communal areas within property that they let, then they are covered by the DDA. In these cases, the question of who pays for the costs of compliance is notably unclear in the provisions of the DDA. This is a point of understandable concern. And who is responsible for making the necessary changes?
The party providing the services will be required to make such changes and alterations to his premises as are “reasonable”. On the assumption that a physical change is made to the premises the question still remains as to who will pay for this change – landlord or tenant?
Multi-let offices
Where the landlord provides services to the public – such as the operator of a leisure centre – then there is no difficulty on the landlord in the service provider. However what about a multi-let office? The DDA says the tenant is entitled to make changes to the premises he operates from, subject to the landlord’s consent, but not to the other parts of the building.
If the landlord carriers out adjustments to the common parts of a building he can recover costs through the service or rental charge. However, a tenant would find it more difficult to recover such costs.
Such issues remained unclear under the DDA. Leases, if granted over a period of time have rent review clauses whereby the rents will be reviewed, usually upwards, every five years. Where the parties disagree it is usually passed to an expert to determine the rent which reflects in real terms the current market value of the subjects. If the tenant has made improvement so the property and the lease does not say these should be disregarded then this will be taken into account when valuing the property.
Drafting leases
Parties should be very careful in drafting their leases. The landlord will wish to ensure that any improvements made by a tenant will not allow the tenant to claim that he should be entitled to a reduced rent as he has made improvements to the premises.
Often the parties will have similar obligations to comply with the DDA that are not necessarily compatible. For example, a landlord may ensure that any fire escapes are compatible for use by a maximum of two wheelchair users. However, if a disabled charity were to lease one of the landlord’s units this could involve a greater number of wheelchair users. However, if a disabled charity were to lease one of the landlord’s units this could involve a greater number of wheelchair users they first envisaged.
The DDA is not an act that can be ignored. The Disability Rights Commission has been set up to promote the aims of the DDA and in the past 3 years has responded to nearly half a million queries from disabled people and businesses wanting advice and information on disabled rights. The commission represents any disabled persons who feel they have a claim they can pursue either through mediation or the courts. This has included, for example, cases involving disabled persons entry to restaurants because they have a wheelchair.
Legal action
Rights under the act are enforced by the individual themselves raising an action either against an employer in a Tribunal or against an individual or organisation in the Sheriff Court. The aggrieved party will be able to claim compensation for their loss (if any) or at the very least for injury to their feelings. While this will not necessarily result in large amounts being awarded to the individual, it is unlikely that any business would welcome the negative publicity identifying that it turned away or discriminated against disabled persons.
So what does the future hold under the provisions of the act? Disabled individuals and representative organisations are empowered under the act to point the finger of blame. Doing nothing is simply not an option and, while individuals and organisations may not be required to take steps to fundamentally alter the nature of their service, trade, profession or business, they will need to seriously consider relevant changes and alterations to avoid being named and shamed.