Is there a rental occupancy standard?
A reasonable occupancy standard is commonly based on guidance from the Department of Housing and Urban Development (HUD) that as a general rule, an occupancy policy of two persons in a bedroom is reasonable under the Fair Housing Act. This is based on several factors such as the size of bedrooms, the size of the rental unit, configuration of the unit, physical limitations of the housing, relevant factors such as the age of children, state and local housing and occupancy codes, and other situational factors. Since the number of bedrooms is not the only factor that must be considered in developing occupancy standards, the HUD guidance is sometimes referred to as the “two-per-bedroom-plus” rule.
The federal Fair Housing Act prohibits discrimination in housing because of race, color, national origin, religion, sex, familial status, and disability. Landlords cannot use occupancy restrictions to discriminate based on familial status. A landlord’s occupancy policy that directly or indirectly excludes or restricts children would be a violation of fair housing laws. An occupancy policy which limits the children per unit is less likely to be reasonable than an occupancy policy which limits the number of people per unit.
The HUD guidance does not categorically set an occupancy limit for a rental unit. A landlord cannot know for certain that a reasonable two-plus occupancy limit for a unit will meet federal standards for legal occupancy.
A landlord may have legitimate business reasons to restrict the number of occupants allowed in a particular rental unit. Legitimate business reasons to limit the number of occupants in a particular rental unit could include limitations of building systems such as plumbing, electrical, or sewer or septic systems that could not accommodate increased use. The age and condition of the rental unit as well as the size and configuration of the unit may also be a limiting factor for occupancy.
States and municipalities can set their own occupancy standards that may be different than federal standards. State and local standards are usually equal to or greater than federal standards. Additionally, states or municipalities may designate other protected classes which are covered by anti-discrimination laws.
In some states occupancy standards may allow fewer people to occupy a rental unit. This could result in a landlord being compliant with state standards but non-compliant with the federal standard if the HUD guidance is applied.
A landlord, when developing occupancy standards for his units, must research federal, state, and local occupancy standards to determine how many people must be allowed in a particular rental unit under federal standards, under state statutes, and under local standards. There will be two sets of numbers that must be taken into consideration for occupancy standards, (1) the minimum number of occupants allowed in a particular unit, and (2) the maximum number of occupants as set by state and local health and safety codes based on the size of the rental unit and the number of bedrooms and bathrooms in the rental unit.
To help reduce potential problems a landlord should use standards that are at least as generous as the federal standards, but follow state and local standards if those standards are more generous than federal guidelines/standards.