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.”