News

HUD Issues Correction Regarding VAWA Model Forms

A few days ago I sent a memo to clients regarding the availability of four model VAWA forms on HUD s web page. Those forms are now available on HUDClips. The forms are: Notice of Occupancy Rights Under VAWA; Model Emergency Transfer Plan; Certification of Domestic Violence; and Emergency Transfer Request.   HUD has also corrected the date by which owners/agents must provide the Notice of Occupancy Rights and Certification form to applicants when assistance is being denied or at the time the new household moves into the property. HUD had originally stated that date as December 16, 2017; it should be December 16, 2016. Also, beginning on December 16, 2016, O/As must provide the Notification of Occupancy Rights and Certification form with any notification of eviction or termination of assistance. O/As are required to develop and implement an Emergency Transfer Plan by June 14, 2017, and should use the Departmental Emergency Transfer Plan form as a guide. O/As may require tenants seeking an emergency transfer to provide a written Emergency transfer request. To make this process easier, O/As may provide the Departmental Request for to tenants. Multifamily housing will be updating the Lease Addendum form, HUD-91067 in the future. In the meantime, O/As may continue to use the current form. All O/As operating properties under HUD's Office of Multifamily Housing should download the model documents noted above and begin the implementation process, keeping in mind the June 14, 2017 deadline for the Emergency Transfer Plan.

HUD Comment Request for Housing for Older Persons Act of 1995 (HOPA)

HUD Comment Request for Housing for Older Persons Act of 1995 (HOPA) As required by federal law, on December 13, 2016, HUD published a 60-day Notice of Proposed Information Collection of the Housing for Older Persons Act of 1995 (HOPA). The purpose of the notice is to solicit comments from the public and agencies concerning whether the required information collection is necessary for program performance purposes. The notice is also useful for reminding owners and managers of their responsibilities in the operation of housing for older persons. Background The Fair Housing Act prohibits discrimination on the basis of familial status (individuals living in households with one or more children under the age of 18). However, the Act exempts three categories of "housing for older persons" from liability for familial status discrimination: Housing provided under any state or federal program which HUD determines is "specifically designed and operated to assist elderly persons (as defined in the state or federal program)," Housing "intended for, and solely occupied by persons 62 years of age or older," and Housing "intended and operated for occupancy by at least one person 55 years of age or older per unit ( 55 and older housing)." In December 1995, Congress passed HOPA as an amendment to the Fair Housing Act (FHA). HOPA modified the "55 and older" exemption under the FHA by eliminating the requirement that a housing provider had to offer "significant facilities and services specifically designed to meet the physical or social needs of older persons." In order to qualify for the HOPA exemption, a housing community must meet each of the following criteria: At least 80% of the occupied units in the community must be occupied by at least on person who is 55+; The housing provider must publish and adhere to policies and procedures that demonstrate the intent to operate housing for persons age 55+; and The housing provider must demonstrate compliance with "rules issued by the Secretary for verification of occupancy, which shall provide for (age) verification by reliable surveys and affidavits." The information that is required to be collected is necessary to demonstrate a housing provider s eligibility to claim the "55 and older" housing exemption as an affirmative defense to a familial status discrimination complaint. It is common practice in the senior housing industry to publish and consistently enforce age verification rules and policies and procedures that indicate an intent to provide housing for older persons. Under HOPA, a "55 or older" housing provider should conduct an initial occupancy survey of the community to verify compliance with HOPA s "80% occupancy" requirement and should maintain such compliance by periodically reviewing and updating existing age verification records for each occupied dwelling unit at least once every two years. The HOPA exemption also requires that a summary of the occupancy survey results must be made available for public inspection. No individual resident information is required; the summary may simply indicate the total number of dwelling units actually occupied by persons age 55+. A housing provider may be required to show information on individual households only in the case of a familial status discrimination charge, and in such cases, only HUD will be entitled to the information. These record-keeping requirements are the responsibility of the housing provider that seeks to qualify for the HOPA exemption. Owners and managers of 55+ housing should ensure that the recordkeeping requirements for such housing are maintained and available to the public and HUD.

HUD Model VAWA Forms Made Available

HUD has created Microsoft Word files for the four model forms included in the Violence Against Women Act (VAWA) final rule that was published in the Federal Register on November 16, 2016. These forms are now available on the Office of Multifamily Housing's web page. (https://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh)   The forms are: *Notice of Occupancy Rights Under VAWA; *Model Emergency Transfer Plan; *Certification of Domestic Violence; and *Emergency Transfer Request.   These forms are model forms and owners may customize them as long as they contain the same information and language. During the 12-month period following the effective date of the VAWA regulation, owners/agents (O/As) must give each household the notice of occupancy rights and the certification form either during the annual recertification or lease renewal process, or, if there will be no recertification or lease renewal for a household during the first year after the rule takes effect, through other means. The 12-month period is December 16, 2016, through December 15, 2017. Beginning on December 16, 2017, O/As must provide the Notification of Occupancy Rights and Certification forms to applicants when assistance is being denied or at the time the new household moves into the property. The forms do not have to be provided to every applicant on a property's waiting list. The Office of Multifamily Housing will be updating the current VAWA certification form, HUD-91066. In the meantime, O/As should use the current form. O/As are required to develop and implement an Emergency Transfer Plan by June 14, 2017, and should use the Departmental Emergency Transfer Plan form as a guide. O/As may require tenants seeking an emergency transfer to provide a written Emergency transfer request. To make this process easier, O/As may provide the Departmental Request for to tenants. Multifamily housing will be updating the Lease Addendum form, HUD-91067 in the future. In the meantime, O/As may continue to use the current form. All O/As operating properties under HUD's Office of Multifamily Housing should download the model documents noted above and begin the implementation process, keeping in mind the June 14, 2017, deadline for the Emergency Transfer Plan.

HUD Final Rule Prohibiting Smoking in Public Housing - December 5, 2016

On December 5, 2016, HUD published a Final Rule in the Federal Register, "Instituting Smoke-Free Public Housing." This rule requires each public housing agency (PHA) administering public housing to implement a smoke-free policy no later than 18-months from the effective date of the rule. The effective date is February 3, 2017, meaning that all public housing must be non-smoking no later than August 3, 2018. The rule must ban the use of prohibited tobacco products in all public housing living units, indoor common areas in public housing, and in PHA administrative office buildings. The smoke-free policy must also extend to all outdoor areas up to 25 feet from the public housing and administrative office buildings.   Summary of Major Provisions of the Rule This rule applies to all public housing other than dwelling units in mixed-finance buildings. PHAs may, but are not required to, further restrict smoking to outdoor dedicated smoking areas outside the restricted areas, create additional restricted areas in which smoking is prohibited (e.g., near a playground), or, alternatively, make their entire grounds smoke-free. PHAs are required to document their smoke-free policies in their PHA plans, a process that requires resident participation and public meetings. Smoke-free rules must also be included in tenant leases, which may be done either through an amendment process or as tenants renew their leases annually. Over 700,000 units will be affected by this rule (including over 500,000 units occupied by elderly households or households with a non-elderly person with disabilities).   Background On November 17, 2015, HUD published a proposed rule seeking public input on a smoke-free public housing policy. To date, over 600 PHAs have implemented smoke-free policies in at least one of their buildings. It is important to note that this rule applies to public housing only; it does not apply to the HUD multifamily programs, such as Section 8. It is also important to note that HUD s rule does not prohibit public housing residents from smoking - only from smoking in their units and on some (or all) of the property.   Changes Made at the Final Rule Stage The only substantive change in the final rule from the proposed rule is that now waterpipes (also known as hookahs) are included in the list of prohibited products.   Basic Elements of the Rule Although smokers will face new requirements, other residents will generally benefit from an improved quality of life that reduces the dangers of indoor smoking and second hand smoke (SHS) exposure. There is no "right" to smoke in a rental home, and smokers are not a protected class under fair housing laws. There are no known medical conditions for which smoking is considered a legitimate, proven treatment. For this reason, permitting smoking as a "reasonable accommodation" under federal fair housing laws will not be required. In situations where nicotine treatment is appropriate (i.e., smoking cessation) it can be delivered orally or through dermal applications. Under this regulation, PHAs cannot "grandfather" tenants by exempting them from the application of the rule. As of August 3, 2018, no public housing resident will be permitted to smoke in their unit - even if they have been doing so for years. Allowing such a situation would present additional enforcement challenges and prolong the time that other residents are exposed to SHS and the increased risk of fire. HUD is restricting the use of prohibited tobacco products, including cigarettes, cigars, pipes, and waterpipes. This rule does not supersede state or local smoking bans.   Designated Smoking Areas (DSA) If a PHA decides to implement a DSA, HUD recommends appropriate wellness and safety features, such as appropriate seating and shade. If a PHA chooses to designate a smoking area for residents, it must ensure that the area is accessible for persons with disabilities.   Electronic Nicotine Delivery Systems (ENDS) Research to date on ENDS (e-cigarettes) is still developing and lacks clear consensus, in contrast with research on other smoking products. Therefore, this rule does not prohibit the use of ENDS. However, PHAs may exercise discretion in this area and include a prohibition on ENDS in their individual smoke-free policies.   Enforcement Once successfully implemented, smoke-free policies will be enforced similar to other policies under lease enforcement procedures. Based on experiences of the PHAs that have already implemented smoke-free policies, when there is resident engagement in developing the plan and an effective plan for implementation, policy enforcement is less likely to lead to evictions. All residents will be required to sign the lease amendment as a condition of continuing occupancy. Termination of assistance for a single incident of smoking, in violation of a smoke-free policy, will not be grounds for eviction. HUD is encouraging a graduated enforcement approach that includes escalating warnings with documentation to the tenant file.   Expansion of Rule Applicability The final rule does not apply to tribal housing, mixed-finance, or PHA properties that have converted to project-based rental assistance contracts under RAD. HUD may consider expansion of requirements to additional housing assistance programs in the future. Funding The rule provides no additional financial assistance for policy implementation. PHAs will be required to implement the new rule using current financial resources.   Implementation In the final rule, HUD has clarified that the adoption of a PHA smoke-free policy is likely to constitute a significant amendment or modification to the PHA Plan, which will require PHAs to conduct public meetings according to standard PHA amendment procedures. PHA are encouraged to obtain Board approval when creating smoke-free policies for the Agency. The PHA must consult with resident advisory boards to assist with and make recommendations for the PHA plan. HUD believes that the 18-month implementation period will provide sufficient time to conduct resident engagement and hold public meetings. Once the rule is effective (February 3, 2017), PHAs will have 18-months to implement smoke-free policies. PHAs must incorporate the smoke-free policy into resident leases.   Objections - Civil Rights A number of commenters to the proposed rule objected to the idea behind the rule, arguing that the prohibition of smoking in public housing is an invasion of civil rights because it will ban an individual s freedom to do something that is legal. Some argued that the policy will punish the poor and working class. HUD s response to these civil rights objections is that courts have found that smoke-free policies do not violate the Constitution s Equal Protection Clause because there is no fundamental right to smoke, and the classification of a smoker does not infringe on a fundamental Constitutional right. Those who challenge a smoke-free regulation bear the burden to prove that the regulation is not rationally related to a legitimate government interest. Courts have held that protecting persons from SHS is a valid use of the State s police power that furthers a legitimate government purpose.   General Objections Despite various objections to the rule, HUD states that the rule is an opportunity to lower overall maintenance costs and reduce the risk of catastrophic fires while advancing the health of residents and PHA staff. At the same time, PHAs may not treat tenants who smoke in a punitive way when implementing this regulation. For example, there can be no requirement for a higher security deposit from tenants who smoke, but residents may be charged for property damage that is beyond normal wear and tear.   Reasonable Accommodations While there is no special right to a reasonable accommodation for smokers, HUD does acknowledge that some persons, including persons with disabilities, may have additional challenges in quitting, and reiterates that this rule does not require persons who smoke to stop smoking; rather, they must perform the activity in allowable areas outside of the public housing facilities and other restricted areas. HUD stresses that the act of smoking itself is not a disability under the American with Disabilities Act.   Signage HUD strongly encourages PHAs to post signs referencing their smoke-free policy. These signs must be accessible to all residents and must be posted in multiple languages if appropriate.   Scope of the Rule While this rule applies only to public housing, HUD intends to now focus on other HUD-assisted housing with regard to non-smoking rules. HUD will issue a solicitation of comments in the Federal Register to obtain feedback from owners and tenants on the prospect of requiring smoke-free policies in other HUD-assisted properties.   Summary All PHAs that own public housing should carefully examine the requirements of the final rule and begin the implementation process. While PHAs do have some discretion in how the final rule will be implemented, all public housing must be smoke-free no later than August 3, 2018.

HUD Revises Rent Comparability Studies - December 1, 2016

On December 1, 2016, HUD issued an update to Chapter 9 of the Section 8 Renewal Policy guidebook. The guidance applies to any Rent Comparability Study (RCS) signed by an appraiser on or after March 1, 2017. Chapter 9 has been completely reorganized and updated, with the following changes: The responsibilities of owners, appraisers, and reviewers are now all shown in one place (Chapter 9); Highlights provisions unique to RCSs when prepared for an Annual Adjustment Factor (AAF) rent determination; Clarifies that the option to use FMRs or rents in non-section 8 units to determine the market rent are only available for Option Two contracts, and that these options may only be used with HUD approval; Provides more precise instructions on why and how adjustments to the rent grid are made; Increases the documentation that appraisers must provide if an adjustment on the rent grid exceeds a nominal amount or a percentage of the unadjusted rent of the comparable, whichever is greater; Provides clearer qualifications for HUD reviewers; and Establishes a trigger for a second review if a non-appraiser undertakes the substantial review. Owners or projects that are required to conduct RCSs should obtain a copy of the revised Chapter 9 and review it for applicability to their circumstances. A copy should also be provided to any appraisers that are conducting RCSs.    

Definitions and Terminology Relating to VAWA 2013

On November 16, 2017, I sent a memo to clients informing them of the publication of the HUD Final Rule implementing the changes to the Violence Against Women Act (VAWA). Over the next few weeks, I will send a series of memos outlining the various sections of the rule. The rule is long and complex, and explaining the requirements through a series of memo/articles may make it easier to digest and understand. In this article, I will review the various definitions and terms used in the Final Rule. General Terminology HUD continues in the Final Rule to make it clear that VAWA applies regardless of sex, gender identity, or sexual orientation. The rule does not apply solely to women, despite the law s title. In the final rule, HUD adds a provision stating that victims cannot be discriminated against on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial status, disability, or, in the case of HUD programs, age. HUD has revised the certification form, notice of occupancy rights, and model emergency transfer plan to list the four protected crimes separately, and to use the term "perpetrator" in lieu of, or in addition to the term "abuser" when referencing a person who commits one of the VAWA crimes. HUD has also revised the notice of rights and model emergency transfer plan to provide resources for victims of sexual assault and stalking, in addition to resources for victims of domestic violence. Affiliated Individual The term "affiliated individual" does not refer to the tenant who requests or is eligible for VAWA protections. Rather, an affiliated individual refers to a person who has a certain relationship to a tenant who is eligible for VAWA protections. A VAWA crime committed against an affiliated individual (who is not necessarily entitled to VAWA protections) is not a basis for denying or terminating assistance to the tenant. The term includes any individual "living in the household of the person who is eligible for VAWA protections." Live-in aides fall under this category. HUD has revised the definition of "affiliated individual" to include a relationship where an individual has guardianship of another individual, regardless of age. An "affiliated individual" means: (A) A spouse, parent, brother, sister, or child of that individual, or a person to whom that individual stands in the place of a parent or guardian; or (B) any individual, tenant, or lawful occupant living in the household of that individual. Covered Housing Provider For HUD s multifamily Section 8 project-based programs, and for the Section 202 and 811 programs, the final rule provides that the owner is the covered housing provider and responsible for implementing the VAWA requirements. If a PHA is the owner of a project under one of these programs, the PHA is the covered housing provider. If a PHA administers the programs at a property, the PHA will have primary oversight responsibilities under VAWA, including the provision of forms and notices for owners to give to tenants and applicants. For the Moderate Rehabilitation SRO program, both the PHA and the owner are responsible for ensuring that an emergency transfer plan is in place for the covered housing, but it is the owner that has the responsibility for implementing the emergency transfer plan. In the case of the housing choice voucher program and project-based voucher program, it is the PHA that is the covered housing provider responsible for complying with the emergency transfer plan. The PHA is also responsible for providing the notice of occupancy rights and the certification form. However, for the housing choice voucher and project-based voucher programs, both PHAs and owners are covered housing providers and must adhere to the rule s basic provisions. For mixed-finance units and public housing developments that received public housing assistance under the Choice Neighborhoods and HOPE VI programs, the PHA is the covered housing provider. For FHA-insured multifamily projects, the new rule clarifies that the covered housing provider is generally the mortgagor. However, if the mortgagor sells the project to a new owner, but continues as the mortgagor, the new owner is the covered housing provider. Domestic Violence VAWA 2013 defines domestic violence as including the following: Felony or misdemeanor crimes of violence committed by a current or former spouse on intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person s acts under the domestic or family violence laws of the jurisdiction. The final rule clarifies that the term "spouse or intimate partner of the victim" includes a person who is or has been in a social relationship of a romantic or intimate nature with the victim, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Stalking The definition of "stalking" is when an individual, the perpetrator, engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others, or suffer substantial emotional distress. Stalking is not limited to situations where the perpetrator is someone with whom the victim was in any specific type of relationship. This article has explained some of the basic terms used in the final HUD regulation. The next article will provide a detailed overview of the emergency transfer provisions of the final rule.

Applicability of Final VAWA Rule

On November 16, 2017, I sent a memo to clients informing them of the publication of the HUD Final Rule implementing the changes to the Violence Against Women Act (VAWA). Over the next few weeks, I will post a series of articles outlining the various sections of the rule. The rule is long and complex, and explaining the requirements through a series of memo/articles may make it easier to digest and understand. In this article, I want to discuss the applicability of the rule.   Applicability   Eligibility for VAWA Protections. The final rule seeks to ensure proper evaluation of individuals who are or have been victims of domestic violence, dating violence, sexual assault, or stalking. VAWA 2013 prohibits the denial of admission or assistance to an individual "on the basis" of that person having been a victim of domestic violence, dating violence, sexual assault, or stalking. HUD interprets "on the basis" to include factors directly resulting from the domestic violence, dating violence, sexual assault, or stalking. g., if an individual has a poor rental or credit history, or a criminal record, or other adverse factors that directly result from being a victim of domestic violence, dating violence, sexual assault, or stalking, the individual cannot be denied assistance under a HUD program if the person otherwise qualifies for the program. VAWA 2013 does not independently provide protection for victims of economic abuse who are not also the victim of domestic violence, dating violence, sexual assault, or stalking. Both VAWA 2013 and the final rule provide that applicants will be provided with notice when they are denied assistance or admission under a covered housing program for any reason. The final rule adopts the universal definition of stalking, which is "any course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others, or suffer substantial emotional distress." The rule clarifies that only tenants who are assisted by a covered program can invoke the VAWA protections that apply solely to residents. The term "tenant" refers to an assisted family and the members of the household on the lease but does not include guests or unreported members of a household. A Live-in aide or caregiver is not a tenant, and cannot invoke VAWA protections. However, a live-in aide or guest could be an affiliated individual of a tenant, and if that aide or guest is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant with whom the affiliated individual is associated cannot be evicted or have assistance terminated on the basis of the domestic violence, dating violence, sexual assault, or stalking. Also, if a live-in aide is a victim of domestic violence, dating violence, sexual assault, or stalking, and the tenant seeks to maintain the services of the aide, the housing provider cannot require that the aide be removed from the household on the grounds of being a victim of abuse covered by VAWA. To require removal of the aide solely because the aide is a victim of abuse covered by VAWA likely would violate the Fair Housing Act s reasonable accommodation provisions. If a tenant requests and qualifies for an emergency transfer because the aide is a victim of domestic violence, dating violence, sexual assault, or stalking, the tenant s entire household - including the aide - can be transferred. If an unreported person is living in a unit and the tenant is afraid to ask the unreported member to leave due to a domestic violence experience, the tenant is covered by VAWA and eligible for the remedies provided. The final rule clarifies that only properties using HUD covered programs are subject to the rule. Therefore, housing providers with a mixed portfolio (i.e., a combination of HUD and non-HUD projects) may not be required to provide VAWA protection to tenants in non-covered projects. Housing providers should be aware of other Federal, State, and local laws that may apply. g., properties with Low-Income Housing Tax Credits (LIHTC) are subject to VAWA and should seek guidance from the Department of Treasury or the appropriate Housing Finance Agency (HFA). A tenant or family may invoke VAWA protections on more than one occasion and cannot be subjected to additional requirements because they have invoked VAWA in the past. In cases where the presence of the perpetrator on the property will endanger persons other than the tenant, a housing provider may evict or terminate assistance to a tenant. The housing provider must be able to demonstrate an actual and imminent threat to others if the tenant is not removed, and this is considered a last resort action. Victims do not have to contact authorities, such as police, or initiate legal proceedings against an abuser or perpetrator to qualify for VAWA protections. In other words, housing providers may not require that a victim obtains or seek a restraining order. Covered Programs: The final rule lists all the programs covered by VAWA and adds the Housing Trust Fund (HTF) program. Since the HTF is very similar to the HOME program, which is a covered program, HUD states that exclusion of the program from VAWA coverage would not be logical. Virtually all Section 202 projects are also covered, unless the Section 202 direct loan project has no agreements or contracts with HUD (such as project-based Section 8). These projects are limited in number but are not subject to VAWA. Concerning the Rental Assistance Demonstration (RAD) program, tenants in converted units continue to be covered by VAWA protections provided under HUD s Section 8 Project-Based Voucher or Project-Based Rental Assistance Program. Residents residing in units with assistance under the Choice Neighborhoods program receive VAWA protection under the relevant rental subsidy programs if the assistance comes from a HUD covered housing program. Tenants in public housing that received funding under the HOPE VI program will have the same VAWA rights as other public housing tenants. HUD funded emergency shelters are also covered by VAWA.   The next article will focus on the various definitions and terminology unique to the VAWA 2013 Act and final HUD rule.

Occupancy Standards – Recommendations and Best Practices

All communities should have occupancy standards to prevent overcrowding of units. In the case of federally assisted properties, the standards should also prevent underutilization of space.   A primary goal of any occupancy standard should be to ensure that it is not restrictive to the point of inhibiting the ability of families with children in their ability to find housing. This is due to the fact that families with children are protected under the "familial status" provisions of federal fair housing law.   The industry standard is generally two persons per bedroom. This policy was first enunciated in the HUD "Keating Memorandum" in 1991, and became official HUD policy in 1998. However, the memo points out that the two person per bedroom standard is not an absolute and that other considerations are important. In fact, there have been recent challenges to the two-person standard, especially in areas where local occupancy laws may permit more than two people per bedroom based on square footage or other factors.   The Fair Housing Act does not specifically address occupancy standards and Congress has recognized the legitimacy of such rules. Subject to state and local laws, every apartment community should set its own standards. Elements that should be considered in setting these standards include -   How large are the bedrooms? Are there extra rooms (e.g., den, office, or loft) that could serve as a bedroom? What is the age of the children? What is the unit configuration? Does the property have physical limitations (e.g., septic or sewer capacity) that will limit occupancy?   It is not recommended that owners automatically adopt the two-person per bedroom standard. Fair housing settlements have occurred in at least two cases involving the two-person per bedroom standard. Communities with across the board two-person per bedroom policies are at greater risk of testing by fair housing advocacy agencies. If a company wants to set an across the board policy without completing a full review with applicability to the specific property, I recommend a "2+1" standard. This is two-people per bedroom, plus one. So, a two-bedroom unit would permit five occupants.   Generally, the unit size should be a family s choice - not the owner s. Even in federally subsidized properties, families should be able to choose between whatever unit sizes they are eligible for. For example, a family of three could be eligible for anything from a one-bedroom to a three-bedroom unit.   Research State and Local Laws   Some localities set occupancy standards based on square footage (total square footage per person or square footage per bedroom per person are examples). Properties should never have an occupancy policy that violates local or state ordinances. If a local occupancy policy allows only two-persons per bedroom, the "2+1" policy noted above should not be implemented.   Multiple codes may come into play and all should be examined. These may include fire codes, building codes, and zoning requirements.   Issues to Consider When Setting Occupancy Standards   Size of unit and Bedrooms: It may be reasonable to allow for more occupants if a unit is spacious with large bedrooms, while the two-person per bedroom policy may be reasonable for a small mobile home; and Configuration of the Unit: A unit with a den or study will almost certainly be expected to permit more than two-people per bedroom.   One question often raised is whether the age of children should be considered when setting occupancy standards. The answer is yes - if it benefits the family. While it may be reasonable to deny a small one-bedroom unit to an adult couple with a teenager, this policy could be challenged if the same couple had an infant child. In fact, I recommend not counting infant children under 18-months when considering unit occupancy. The family should be able to choose where the child sleeps.   Also, if a household adds a baby, they should not be required to move to a larger unit - regardless of occupancy policies - until the child is at least 12-months old (two years old would be an even safer policy).   Owners should never require children of the opposite sex - regardless of age - to have separate bedrooms. Likewise, there should be no requirement that adults and children of either gender have separate bedrooms. These are all decisions that should be left to the family. Limitations on the number of people per bedroom should be the only consideration; not sex, age, or relationship.       What About Physical Limitations on Building Systems?     If building infrastructure, such as septic or sewer systems, have limited capacity, limitations on occupancy may be acceptable. In such cases, the owner will almost certainly be expected to have engineering studies supporting the occupancy restrictions based on the capacity of the physical plant.   The key in setting limitations on occupancy is to limit the number of people - not the number of children. To quote the Keating Memorandum, "An occupancy policy which limits the number of children per unit is less likely to be reasonable than one which limits the number of people per unit."