# ADA Upgrades vs. Change of Occupancy Class



## DTBarch (Jan 31, 2011)

Existing industrial park building.  Former tenant had leased and combined 7 contiguous tenant spaces and had permitted modifications from the pre-lease condition with Occupancies B, F-2, and S-1 components in each of the 7 spaces.  In all cases there was an office area up front, low haz manufacturing in the center and a bit of warehouse at the rear of the spaces.  (pre-lease condition was all B/S-1, no F-2)

Fast forward 10 years, tenant's lease has ended and he is required by lease agreement to return the spaces to the pre-lease condition including any associated code required upgrades that would be involved in returning those spaces to the pre-lease condition.

In each of these seven tenant spaces the pre-lease condition contained toilet rooms measuring on average 5 feet square that are not compliant to today's accessibility standards and generally located within the office area.  The landlord anticipates leasing these 7 tenant spaces separately now as straight B/S-1 occupancy spaces.

Question 1:  Does the "shedding" of the F-2 occupancy component qualify as a "change of occupancy" and trigger fully accessible modifications to the toilet rooms in line with Section 3409.4?  (There is no justifiable technical infeasibility associated with the modifications per Section 3402.1)

Question 2:  Does the fact that the toilet rooms are physically located within the office area that is not specifically undergoing a change of occupancy have any affect on the interpretation, even though they served the prior F-2 occupancy?

In some of the spaces, there are alterations involved that would otherwise trigger the "20% Rule" per Section 3409.7, but in my mind you would have to achieve resolution on the change of occupancy issue before you could step back to the solutions available under 3409.7

Thanks in advance for your thoughts.

-DTB


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## mark handler (Jan 31, 2011)

Who would be stupid enough to requre the removal of complying restrooms?

Nomatter what occupant or occupany that is moving in,  there will be a requirement for complying restrooms. And a POT to them.


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## mtlogcabin (Jan 31, 2011)

Question 1: Does the "shedding" of the F-2 occupancy component qualify as a "change of occupancy" and trigger fully accessible modifications to the toilet rooms in line with Section 3409.4? (There is no justifiable technical infeasibility associated with the modifications per Section 3402.1)

The F-2 will be replaced with something and if it is just an expansion of the S-1 I would not use that as a trigger   



Question 2: Does the fact that the toilet rooms are physically located within the office area that is not specifically undergoing a change of occupancy have any affect on the interpretation, even though they served the prior F-2 occupancy?

No because what you have is mixed uses in a single business (leased) space and the toilet facities are for all occupants of that leased space. A determination of the uses and whether there is a change or not cannot be determined until a new tenant signs a lease for a space.


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## DTBarch (Jan 31, 2011)

mark handler said:
			
		

> Who would be stupid enough to requre the removal of complying restrooms? Nomatter what occupant or occupany that is moving in,  there will be a requirement for complying restrooms. And a POT to them.


Mark - there are no compliant restrooms existing and while the 2nd part of your reply states an absolute declaration, Section 3409.7 provides relief for fully complying restrooms under alteration scenarios.


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## mark handler (Jan 31, 2011)

mtlogcabin said:
			
		

> The F-2 will be replaced with something and if it is just an expansion of the S-1 I would not use that as a trigger


All occupancies, including occupied S-1, require restrooms

Remember Motor vehicle repair garages, are S1's


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## mark handler (Jan 31, 2011)

IBC 3409.7 Alterations affecting an area containing a primary function. Where an alteration affects the accessibility to, or contains an area of primary function, the route to the primary function area shall be accessible. *The accessible route to the primary function area shall include toilet facilities or drinking fountains serving the area of primary function.*


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## DTBarch (Jan 31, 2011)

Question 1: Does the "shedding" of the F-2 occupancy component qualify as a "change of occupancy" and trigger fully accessible modifications to the toilet rooms in line with Section 3409.4? (There is no justifiable technical infeasibility associated with the modifications per Section 3402.1)

The F-2 will be replaced with something and if it is just an expansion of the S-1 I would not use that as a trigger  That's Logical but curious if everyone has that same logical interpretation. 

Question 2: Does the fact that the toilet rooms are physically located within the office area that is not specifically undergoing a change of occupancy have any affect on the interpretation, even though they served the prior F-2 occupancy?

No because what you have is mixed uses in a single business (leased) space and the toilet facities are for all occupants of that leased space. A determination of the uses and whether there is a change or not cannot be determined until a new tenant signs a lease for a space. The Modifications will be permitted as speculative work by the landlord with no tenant identified.  However the vast majority of the tenant's in the park are B/S-1 and the landlord (my client) needs to capture these upgrade costs since the lease agreement was to return the space to the pre-lease condition which was B/S-1.  So I guess my question assumes that the conversion of F-2 to S-1 is a given for the purposes of establishing the scope of work.


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## DTBarch (Jan 31, 2011)

mark handler said:
			
		

> IBC 3409.7 Alterations affecting an area containing a primary function. Where an alteration affects the accessibility to, or contains an area of primary function, the route to the primary function area shall be accessible. *The accessible route to the primary function area shall include toilet facilities or drinking fountains serving the area of primary function.*


Mark - further clarifying, I'm not suggesting that we would eliminate restrooms, just re-build them to fully accessible standards.


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## mtlogcabin (Jan 31, 2011)

just re-build them to fully accessible standards.

Agree it would be a wise move to do that at this time


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## MarkRandall (Jan 31, 2011)

The wise move is to rebuild them and make them comply.

The problem I see here, is who is going to pay for that? Some of the spaces may not require accessibility upgrades due to minor alterations and I don't think you can pin that on the tenant that's leaving. I also don't see this has an occupancy change, others may disagree. The building is mixed use and no new occupancies are being added, just existing occupancies moving around or being deleted. IMHO, that's not change of occupancy, but just plain old alterations. Not sure how to back that up one way or the other with the code book.


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## brudgers (Jan 31, 2011)

First off, the restrooms did not comply with ADAAG 10 years ago and should have been upgraded at that time.

Secondly, the return to pre-lease condition is not a consideration - it is a private contractual matter.

The landlord's plans are not a consideration either.

Whatever is submitted needs to meet current requirements and owners and tenants are obligated to remove architectural barriers on an ongoing basis.


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## DTBarch (Jan 31, 2011)

brudgers said:
			
		

> First off, the restrooms did not comply with ADAAG 10 years ago and should have been upgraded at that time.Secondly, the return to pre-lease condition is not a consideration - it is a private contractual matter.
> 
> The landlord's plans are not a consideration either.
> 
> ...


Brudgers,  thank you.  You're right, the return to pre-lease condition is a private contractual matter.  However, as in all legal matters, interpretations are made using legal code as the basis for those rulings.  In point of fact, each and every one of these suites is going to be re-built to a layout completely different than the pre-lease condition that best attracts future tenant prospects and is fully compliant to today's standards, including all the toilet rooms (14 in total).  We have completed design are already moving forward with permitting to accomplish compliant designs which, both my client and I agree, is the right thing to do on many levels.

Having said that, from my client's standpoint in the real world, the pre-lease condition is not only a consideration, it is a legal matter that must be addressed and is paramount to the reconciliation of this lease and ultimately is a key part of nearly $300k in negotiated settlement capital.  The only way to define the tenant's final financial obligation is to build a defensible interpretation around the building code's requirements.  The hypothetical design of returning it to pre-lease condition will not be submitted to the City, but to a private plan review firm which will review and comment, leading to a final bid set that will establish a number that all parties are agreeing to honor.  Therefore, the intent of my question is not "what should we do", but rather is there solid technical interpretations of the building code that address my original two questions that would be ultimately defensible in a court of law.

While I was hoping that by tapping in to the collective brainpower of plans examiners and code officials in this Forum I would arrive at a firm consensus on the technical requirement of the IBC (a fairly reasonable expectation I would argue), from all of the responses I have received, it appears as though the establishment of the change of occupancy clause is less than definite and open to interpretation, which, unfortunately is about where I started, myself seeking the ridgeline of that piece of code.  Depending on the reviewer, or AHJ in general, you could get varying direction.    I appreciate everyone's input.  This is a great place to discuss such things.  Thanks again.


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## mtlogcabin (Jan 31, 2011)

> [Existing industrial park building. Former tenant had leased and combined 7 contiguous tenant spaces and had permitted modifications from the pre-lease condition with Occupancies B, F-2, and S-1 components in each of the 7 spaces/QUOTE]Who was responsible for the improvement 10 years ago? I would look to the lease agreement for what the tenants responsibility was. If the tenant was responsible and his improvements did not meet code/ADA then I would be asking for a monetary settlement to achieve what was required 10 years ago and the landlord would pay for any new code requirements during that time frame (vertical grab bars come to mind as an example)e


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## brudgers (Jan 31, 2011)

DTBarch said:
			
		

> Brudgers,  thank you.  You're right, the return to pre-lease condition is a private contractual matter.  However, as in all legal matters, interpretations are made using legal code as the basis for those rulings.  In point of fact, each and every one of these suites is going to be re-built to a layout completely different than the pre-lease condition that best attracts future tenant prospects and is fully compliant to today's standards, including all the toilet rooms (14 in total).  We have completed design are already moving forward with permitting to accomplish compliant designs which, both my client and I agree, is the right thing to do on many levels.   Having said that, from my client's standpoint in the real world, the pre-lease condition is not only a consideration, it is a legal matter that must be addressed and is paramount to the reconciliation of this lease and ultimately is a key part of nearly $300k in negotiated settlement capital.  The only way to define the tenant's final financial obligation is to build a defensible interpretation around the building code's requirements.  The hypothetical design of returning it to pre-lease condition will not be submitted to the City, but to a private plan review firm which will review and comment, leading to a final bid set that will establish a number that all parties are agreeing to honor.  Therefore, the intent of my question is not "what should we do", but rather is there solid technical interpretations of the building code that address my original two questions that would be ultimately defensible in a court of law.
> 
> While I was hoping that by tapping in to the collective brainpower of plans examiners and code officials in this Forum I would arrive at a firm consensus on the technical requirement of the IBC (a fairly reasonable expectation I would argue), from all of the responses I have received, it appears as though the establishment of the change of occupancy clause is less than definite and open to interpretation, which, unfortunately is about where I started, myself seeking the ridgeline of that piece of code.  Depending on the reviewer, or AHJ in general, you could get varying direction.    I appreciate everyone's input.  This is a great place to discuss such things.  Thanks again.


That's all well and good, but knowingly designing something which does not meet ADA will never be defensible in court because it is professionally negligent. It probably won't be covered by your E&O carrier either.

Your license requires you to design in conformance with all applicable laws - even when it might save the client money to do otherwise.

Your license even requires you to design in conformance with all applicable laws when the code official would allow you to do otherwise.

That is assuming you have a license.


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## Gene Boecker (Feb 1, 2011)

Did I miss something?

Vacating a building does not constitute a change in use or change in occupancy. It retains the prior occupancy classification until such time as a new tenant moves in. So there is no change in occupancy. Removing manufacturing components does not change it from F-2 to S-anything. It becomes that anything when it is occupied by the new tenant. If the contractual intent is to return it to the pre-occupancy condition, that would be the pre-occupancy requirements at that period 10 years ago. If the intent of the contract is to assume that the alterations are to create the condition whereas the occupancies are the same as what they were 10 years ago but bring everything up to current code - that's different. In that case it *IS* a change in occupancy: According to the IEBC:

*Accessibility. *




_Existing buildings or portions thereof that undergo a change of group or occupancy classification shall have all of the following accessible features:_




_1. At least one accessible building entrance._

_2. At least one accessible route from an accessible building entrance to primary function areas._

_3. Signage complying with Section 1110 of the _
​




_International Building Code__._




_4. Accessible parking, where parking is provided._

_5. At least one accessible passenger loading zone, where loading zones are provided._

_6. At least one accessible route connecting accessible parking and accessible passenger loading zones to an accessible entrance._

_Where it is technically infeasible to comply with the new construction standards for any of these requirements for a change of group or occupancy, the above items shall conform to the requirements to the maximum extent technically feasible. Changes of group or occupancy that incorporate any alterations or additions shall comply with this section and Sections 506.1 and 905.1 as applicable._
​Item #2 requires the accessible route which by definition includes the drinking fountains and toilet rooms. Therefore, if the contractual intent is to assume that a tenant can move back in without performing any modifications to the space and use the areas as was designed 1- years ago, it is a change in occupancy and the toilet rooms need to be made accessible. Mark Handler is correct in stating what that entails.

*Now, here's my big question*: When was this originally constructed? If it was within the last 10 years, the toilet rooms should have been accessible at that time since the federal ADA required it regardless of whatever state or local code was in effect. If it was constructed earlier than that and only the lease was initiated 10 years ago, why didn't the prior occupant upgrade to the current code at that time? The 2000 IBC and the legacy codes all required accessible toilet rooms in 2001. 

If the issue is contractual, address it from the contractual standpoint. Why wasn't it up to code when the tenant originally occupied it 10 years ago?


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## Yikes (Feb 1, 2011)

DTBarch said:
			
		

> The only way to define the tenant's final financial obligation is to build a defensible interpretation around the building code's requirements.


My problem is that your original post talked about "ADA upgrades" but your settlement is based on building code - -but ADA and the building code are two different things.  It would be like settling a tie-score american football game by playing sudden death soccer.


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## mark handler (Feb 1, 2011)

Yikes said:
			
		

> My problem is that your original post talked about "ADA upgrades" but your settlement is based on building code - -but ADA and the building code are two different things.  It would be like settling a tie-score american football game by playing sudden death soccer.


Yikes

Most people don't know that the ADA is a civil rights law and not a code at all..... And the ADA does not. in itself, contain any standards or guidelines.

http://www.ada.gov/cguide.htm


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## Gene Boecker (Feb 1, 2011)

For most people, anything associated with accessibility is simply "ADA" in conversation.  You usually need to vet the discussion to determine which set of regulations are being discussed.


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## mark handler (Feb 1, 2011)

Gene Boecker said:
			
		

> For most people, anything associated with accessibility is simply "ADA" in conversation.  You usually need to vet the discussion to determine which set of regulations are being discussed.


Yes, most of the posters on this board should know the difference, But don't


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## Yikes (Feb 1, 2011)

I'm OK with the man-on-the-street using the term "ADA" as a catch-all for accessibility, like "Band-Aid" for bandage.

However, when someone settles a legal case, you'd think the distinction between building code and civil law would be important.


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## mark handler (Feb 1, 2011)

Yikes said:
			
		

> I'm OK with the man-on-the-street using the term "ADA" as a catch-all for accessibility, like "Band-Aid" for bandage.However, when someone settles a legal case, you'd think the distinction between building code and civil law would be important.


Or someone that is charged with enforcing accessibility.


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## Jim B (Feb 4, 2011)

Are you under the IBC 2009 or 2006?

Reverting a tenant space from B/S1/ F2 to only B/S1 is a change in occupancy. I would guess that the F2 space is now becoming part of the S1 space.

Now to the code year issue:

The IBC 2006 simply stated a change in occupancy will trigger the 6 items listed in IBC 2006, 3409.3.  So if a portion of a building changes occupancy, this section is applicable.

There is a requirement for an accessible route to areas of primary function. This section never states that toilet rooms and water fountains are part of this route. Just that the 6 items shall comply

IBC 2009, 3411.4 now states that if a building undergoes a complete change of occupancy these 6 items must comply. It there is a partial change in occupancy then the 20% rule comes into effect. The 20% rule does state that the accessible route to areas of primary function does include toilet rooms and water fountains.

So, under 2009: A building is a free standing structure, or independent structures separated by fire walls. In your case, if each tenant space is separated from each other by only fire barriers (or less) this is not a complete change in occupancy to the entire structure, therefore 20% rule. If these spaces are separated by fire walls, then complete change and the 6 items listed

I have no doubt that I will be corrected on  this


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## Rick18071 (Feb 5, 2011)

Gene - I looked up the definition of Accessible Route in the 2009 IBC. It doesn't say anything about restrooms or drinking fountians. Where did you find that definition?


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## TimNY (Feb 5, 2011)

Rick18071 said:
			
		

> Gene - I looked up the definition of Accessible Route in the 2009 IBC. It doesn't say anything about restrooms or drinking fountians. Where did you find that definition?


See post #6.


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## Rick18071 (Feb 5, 2011)

PA L&I says the Accessible route only needs to go to the rest room door if there is a rest room and to drinking fountians if there is any.

If I made them put in new restrooms I wouldn't keep my job very long.


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## TimNY (Feb 5, 2011)

Rick18071 said:
			
		

> PA L&I says the Accessible route only needs to go to the rest room door if there is a rest room and to drinking fountians if there is any. If I made them put in new restrooms I wouldn't keep my job very long.


Interesting interp.. I know the commentary is not code, but in reading the commentary it is clear the intent is to provide accessible bathrooms.  I don't know why you would provide an accessible route to an inaccessible bathroom.

EDIT: they are required to spend 20% on accessibility.. you are not making them put in accessible bathrooms., you are assuring they spend 20%.  If they spend 20% elsewhere, that's fine.  However, they don't get to spend 5% because the only thing left to upgrade is the bathrooms.


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## Jim B (Feb 10, 2011)

Rick18071, you may want to look at this link:

http://www.portal.state.pa.us/portal/server.pt?open=514&objID=553831&mode=2#34094

When an alteration contains or affects an area of primary function then IBC 2006, 3409.7 comes into play for 20% upgrades.  For this section only there is sort of a *sub definition*: “accessible routes shall include toilet rooms and water fountains”.

PA L&I states that priority for the upgrades should include the 6 items listed in IBC 2006, 3409.4. This is only a recommendation as to where to spend the money. They never state that toilet rooms and water fountain are not required to be upgraded.  You may want to call the PA L&I Accessibility Advisory Board to inquire about this.


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