Corridor Notes · Due Diligence
ADA compliance on a Lexington commercial building is not a question about the building’s age. It is two separate obligations with two different tests, and the second one is priced by a budget you have not written yet. Nothing in the Americans with Disabilities Act grandfathers an old storefront, and the number a buyer should actually underwrite moves with the renovation, not with the year on the cornerstone.
Last updated: September 4, 2026
Is an older Lexington commercial building grandfathered under the ADA?
No. The ADA has no grandfather clause. A building that serves the public is covered regardless of when it was built.
This is the single most common wrong assumption I hear on older Lexington inventory, and it comes from an honest place: local building codes really do grandfather things. The federal statute does not work that way. The Department of Justice’s small-business guidance states that the twelve categories of covered businesses are included “regardless of the size of the business or the age of their buildings,” and says directly that grandfather provisions in local building codes do not exempt a business from its ADA obligations. Read the source yourself: ADA Requirements for Small Business, published by ADA.gov.
So a 1968 building on New Circle and a 2019 build in Hamburg are both covered. What differs is not whether the rules apply but which of two triggers is pulling on you, and that distinction is where most of the money hides.
What are the two triggers a buyer inherits?
One is continuous and applies even if you never touch the building. The other only fires when you renovate, and it has a hard arithmetic cap.
Trigger one — barrier removal in an existing facility. This obligation runs whether or not you are doing any work. The rule is that architectural barriers must be removed when it is “readily achievable” to do so, which ADA.gov defines as “easily accomplishable without much difficulty or expense.” It is a sliding standard: it scales to the size and resources of the business, not to a fixed dollar figure.
Trigger two — the alterations and path-of-travel rule. When you alter an area containing a primary function, the path of travel to that area has to be made accessible too. That is where the number lives, and it is in the next section.
Most articles on this topic blur the two into one vague “you should be ADA compliant.” They are not one thing. A buyer who takes possession and changes nothing is under trigger one only. A buyer who writes a large buildout check is under both, and the second one is the expensive one.
How much does the path-of-travel rule actually cost?
Up to twenty percent of what you spend altering the primary function area. Past that threshold the regulation deems the path-of-travel work disproportionate.
The Title III regulation at §36.403(f)(1) sets the test: path-of-travel alterations are disproportionate to the overall alteration when the cost exceeds 20 percent of the cost of the alteration to the primary function area. The regulatory text is published at the ADA Title III regulations on ADA.gov.
Run that as arithmetic and the practical consequence is not subtle:
| Primary-function alteration budget | Path-of-travel obligation at the 20% cap |
|---|---|
| $0 (buy and operate as-is) | $0 under this trigger — readily-achievable removal still applies |
| $60,000 | up to $12,000 |
| $150,000 | up to $30,000 |
| $400,000 | up to $80,000 |
Two buyers can close on the identical non-compliant building on the same day and carry wildly different exposure, because the exposure is indexed to the buildout, not to the asset. The building does not set the number. Your scope of work does.
The ADA number worth underwriting is not a function of the building’s age. It is twenty percent of a renovation budget you have not written yet.
Whether a phased or split scope changes that arithmetic is a question for a construction attorney, not for me, and I am not going to guess at it in print. Price the cap against the scope you actually intend to build.
Does the safe harbor protect the building you are buying?
Only element by element, and only for elements that already complied with the 1991 Standards. It is a date question about parts, not about the building.
ADA.gov’s guidance is that a facility built or altered in compliance with the 1991 Standards does not require further modification to those elements even where the 2010 Standards differ — but if you choose to alter an element that was in compliance, the safe harbor no longer applies to it. The compliance deadline for the 2010 Standards was March 15, 2012. The ADA National Network states the same rule plainly, that the ADA has no provision to grandfather a facility but does have the element-by-element safe harbor: see the ADA National Network’s FAQ on grandfathering and the 2010 Standards.
Turn that into a due-diligence instruction and it stops being abstract. The right question at the table is not “how old is this building.” It is when was each altered element installed, and to what standard. A 1968 building whose restrooms were rebuilt in 2016 has no safe harbor on those restrooms. A 1998 restroom built to the 1991 Standards does. Permit and inspection history is the document that answers it, which is the same record trail that matters for a Certificate of Occupancy in Lexington.
There is also a category the safe harbor never reaches at all, because the 1991 Standards did not address it. ADA.gov lists these as new in the 2010 Standards and outside safe harbor: amusement rides, exercise machines and equipment, fishing piers and platforms, golf and miniature golf facilities, play areas, saunas and steam rooms, swimming pools, wading pools and spas, shooting facilities with firing positions, and residential facilities and dwelling units. If the Lexington asset you are underwriting is a gym, a pool property, or a mixed-use building with dwelling units, the safe harbor argument you may have been handed does not cover the part that matters.
What order should you walk the property in?
The order the regulator itself recommends. ADA.gov publishes a priority sequence for barrier removal, and it doubles as a walk-through route.
- Access from public sidewalks, parking areas, and public transportation
- Access to the goods and services the business offers
- Access to public restrooms
- Removal of barriers to the other amenities offered to the public
That is the recommended priority order from the ADA.gov small-business guidance cited above. What makes it useful on a Lexington walk-through is that it is ordered by regulatory priority rather than by how the building happens to be laid out — so you look at the parking lot and the approach before you ever admire the storefront. In practice the first item is where older Lexington commercial parcels most often have a problem, because the lot striping, the curb, and the route from the accessible space to the door were laid out before anyone was measuring them.
Who is responsible — the owner or the tenant?
The ADA.gov small-business page cited here addresses the business that serves the public and does not, on that page, allocate the duty between a landlord and a tenant.
I am not going to fill that gap with something I cannot source. What I will say is the practical version: allocation between owner and occupant is a lease question, it is negotiable, and it belongs in front of an attorney before you sign — not discovered afterward. If you are buying a leased asset, the existing lease already says something about it, and reading that clause is cheaper than litigating it.
Is there any offset for the cost?
The federal government publishes two: a credit for small businesses and a deduction for barrier removal. Both have published limits.
ADA.gov’s small-business guidance describes the Disabled Access Credit under Section 44 as available to businesses with 30 or fewer full-time employees or total revenues of $1 million or less in the prior year, covering expenses such as barrier removal, alterations, interpreters and accessible formats. It describes the Section 190 deduction for removing architectural barriers with a maximum deduction of $15,000 per year, available to businesses of any size. The IRS publishes its own page on these provisions: Tax Benefits for Businesses Who Have Employees with Disabilities, published by the IRS.
I am a real estate agent, not your CPA and not your attorney — whether either provision applies to your situation is their call, not mine. I am pointing you at the primary sources so you can bring a specific question instead of a general worry.
Where this fits in a Lexington due-diligence file
The pattern I keep seeing on commercial transactions here is not that buyers ignore accessibility — it is that they price it once, early, off a visual walk-through, and then change the scope of work three months later without ever repricing it. The visual walk answers trigger one. The scope of work is what sets trigger two, and it is usually written after the inspection period closes. Sequencing those two in the right order is ordinary discipline, and it is worth more than any checklist.
The same logic applies when a use is changing rather than just a space: see converting retail space to a restaurant in Lexington, where the buildout budget and the regulatory triggers move together. And if what you are buying is an older use that no longer matches its zoning, read what a nonconforming use in Lexington actually gets you — a different rulebook, but the same lesson about inheriting conditions you did not create.
This is general information about published federal rules, not legal or tax advice. For how any of it applies to a specific building or a specific business, talk to a Kentucky attorney and your CPA.
Frequently asked questions
Does a small commercial building get an ADA exemption because of its size?
ADA.gov’s small-business guidance states that businesses serving the public are covered regardless of the size of the business or the age of their buildings. Size affects the “readily achievable” analysis — the standard scales to a business’s resources — but it is not an exemption from coverage.
If I buy the building and change nothing, do I owe anything?
The barrier-removal obligation in existing facilities is continuous and does not depend on doing a project. It requires removing architectural barriers where that is readily achievable — defined by ADA.gov as easily accomplishable without much difficulty or expense. The path-of-travel rule and its 20 percent cap only engage when you alter an area containing a primary function.
What single document should I ask the seller for?
Permit and inspection history on every altered element, with dates. Because the safe harbor is applied element by element and keyed to compliance with the 1991 Standards — with a March 15, 2012 compliance deadline for the 2010 Standards — the useful question is when each element was installed and to what standard, not how old the building is.
By Marcos Gil, REALTOR® — Keller Williams Commonwealth · KY Real Estate License No. 296259 · Call or text (859) 310-1209.
Disclosure: Marcos Gil owns Central Property Services and also publishes investinthegorge.com and marcosgilrealty.com.
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