ADA Demand Letters: A Vexing Reality for Real Estate Pros

Key takeaways:

• Until the Justice Department or Supreme Court makes the final ruling on digital accessibility rules, litigation over noncompliance remains a risk to businesses.
• ADA demand letters may claim noncompliance violates the Fair Housing Act, which isn’t true.
• Recipients of such letters should immediately contact their insurance carrier and obtain legal counsel to assess next steps.

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Enacted more than 30 years ago, the Americans with Disabilities Act has become synonymous with accessibility. While the act’s accessibility requirements indisputably apply to physical spaces, its application in digital spaces has been debated for well over a decade. That’s because the ADA is silent on how—or even if—its provisions apply to websites.

Despite calls for action, the Justice Department has failed to act to resolve the issue, leaving consumers and businesses to turn to the courts for answers, and law firms to exploit the confusion by sending waves of demand letters to businesses around the country. Just recently, however, businesses celebrated a major victory in an 11th U.S. Circuit Court of Appeals decision in which the court declared that websites are not places of public accommodation.

On April 7, the 11th Circuit issued its long-awaited decision in Gil v. Winn-Dixie Stores, Inc., holding that websites are not places of public accommodation under Title III of the ADA. While this decision comes as a major victory for businesses that have long struggled with whether and how ADA obligations apply to websites, the issue of digital accessibility will remain a target of legal action until either the Justice Department acts or the U.S. Supreme Court settles the issue once and for all.

In the meantime, there are new waves of demand letters exploiting this perceived uncertainty by asserting baseless claims of noncompliance with not only Title III of the ADA but also the Fair Housing Act and similar state laws.

While the ADA claims may be up for debate, the fair housing claims are meritless and frivolous, lacking any regulatory or legal support. There are no provisions in the federal Fair Housing Act that require real estate brokers to code their website to be accessible to individuals with disabilities. And no court has ever concluded that the act requires a real estate broker to maintain an accessible website or that a real estate professional has a more general obligation to ensure effective communication with individuals with disabilities. These unsupported claims are merely self-serving attempts to extract money in the form of attorney’s fees and other costs from real estate professionals.

Follow Best Practices

You can reduce your risk of being the target of one of these website accessibility shakedowns by following these best practices:

1. Assess your website’s current accessibility and take preemptive steps to address and enhance any accessibility issues.
2. Speak to your website provider about what measures they are taking to address your website’s accessibility and be sure to address these issues in your contract with the provider.
3. Consider hiring a website accessibility expert to develop a plan to boost your website’s accessibility.
4. Include an accessibility statement on your website that provides contact information where a user can report difficulties navigating the website or can find help in accessing information or services.

If, despite your best efforts, you find yourself on the receiving end of one of these “ransom” demand letters, start by immediately contacting your insurance carrier and obtaining legal counsel to assess the best next steps.

In addition, be sure to check out NAR’s resources for more information about the ADA and website accessibility. Use these tips and resources to help ensure you successfully manage and mitigate your exposure to ADA website accessibility claims now and in the future.