Maximum number of people in a 2 bedroom?
Question 1
What is the maximum number of people in the 2-bedroom duplex buildings I own in Michigan?
Answer 1
That might depend on a number of factors including the city or county of location, the square footage size of the unit, the sizes of rooms, the floor plan of the unit, and, if you end up fighting the issue in court, the opinion of a judge.
Occupancy limits are potentially a problem. Landlords may set their own reasonable occupancy standards for their rental properties and there are a number of reasons why landlords may want to restrict the number of occupants in the dwelling unit, including health and safety considerations or property component issues that might create a physical limitation (e.g., water supply or septic tank capacities).
However, unreasonable or overly restrictive occupancy standards may be in violation of federal, state, and/or local fair housing laws. Unfortunately, there is no universal rule covering all rental properties.
Federal fair housing law covers 7 protected classes, of which the most obvious issue related to occupancy limits is “familial status.” The familial status protected class is to prevent unfairly limiting housing options because of children in any “family group.” Some states or local jurisdictions have even more restrictive laws regarding children. A landlord’s occupancy policy that directly or indirectly excludes or even restricts children could be a violation of fair housing laws.
A better occupancy policy limits the number of people per unit rather than the number of children per unit.
However, in all cases, anything that is applied to one unit of a property must be applied to all similar units and to all occupants. For example, a landlord can’t limit a two-bedroom unit to a couple and one child rather than allow two children, no matter what the ages and sexes of the children. Also, you can’t charge more rent for an adult and one child than for two adults who are applying to rent a similar unit at about the same time.
A commonly utilized standard for rental occupancy limits is the Department of Housing and Urban Development (HUD) guideline that “an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act.” However, landlords should note this was intended as a guideline, not as the rule, for maximum occupancy of the dwelling unit. In fact, HUD directives for investigating discrimination complaints regarding occupancy limits, take into account other limiting factors such as the size of bedrooms, size of the dwelling unit, the capacity of sewer, septic, and other building systems, and any state or local occupancy requirements. Additional information can be found at ww.hud.gov.
There may be local zoning or building occupancy limitations that apply to rental units. Some localities have based guidelines on the Uniform Housing Code (UHC) model code standards. The UHC standard provides occupancy guidelines based upon square footage rather than the number of bedrooms.
Another standard sometimes mentioned in landlording articles references the BOCA codes for occupancy standards. Building Officials and Administrators (BOCA), a national nonprofit member service organization publishes a series of model local building and construction codes. A maintenance code established by BOCA for guidance to municipalities for health and safety issues on existing properties has sometimes been referenced as a safe harbor standard for setting occupancy
limitations. The code provided guidance on the maximum number of persons who could safely occupy a building without overcrowding, however the code was not created to use for habitability purposes and its recommendations could be found to be in violation of fair housing laws.
Consideration must also be given to state and local laws regarding occupancy standards. Some states have more lenient occupancy standards than federal guidelines. For example, California statutes allow two persons per bedroom plus one more. When there is a conflict between federal, state, and local laws, landlords are safest by utilizing the least restrictive standards – in the California example, the state law would prevail over federal.
Landlords are advised to perform their own research on applicable occupancy laws and formulate policies according to law and local court interpretations, business necessity, and without discriminating against members of any protected class. Failure to do so will result in defending against a discrimination claim under fair housing laws.
To be safe, you need to first verify that there are no state or local laws that are more restrictive than HUD occupancy guidelines and federal fair housing laws. You should also consider discussing the matter with any local rental housing agency having jurisdiction regarding the location of the property.
Lease agreements usually have and should always have a clause that deals with visitors. Long term visitors could result in overcrowding as well as additional expense for the landlord, particularly when the landlord pays for certain utilities. Such clauses usually state that visitors may not remain longer than some number of days during a defined period – for example, a maximum of 2 weeks during a 6-month period. Such clauses sometimes require registration of visitors when staying longer than a specified time and often add an additional rent amount when the stay lasts longer. However, imposing such restrictions on children of a tenant could risk discrimination claims.
In summary, in many jurisdictions there are no hard and fast rules, so a landlord must consider the issues mentioned above, consider potential fair housing issues at all jurisdictional levels, and apply the same rules to all tenants and applicants.
* * * * * *
Question 2
I had prospective tenants (a couple) apply for one of my 4-plex units. I looked him up on the state web for his record and found it was long with felonies even though he is only 30. The other tenants are elderly and there are children in one of the units. I would not want this guy in my building. They are short on the gross income for my units. Can I legally deny on criminal past?
Answer 2
If the applicant does not meet your screening criteria, with such criteria being related to financial qualifications (e.g., income or employment stability) or past rental history (e.g., evictions or past landlord info) and as long as you apply the same criteria to every applicant, then for your current matter you should be able to safely refuse tenancy based on the financial issue and not consider the criminal record information.
However, if you need to deny an applicant based only on a criminal record, as for many landlord issues, the answer can be complicated. For example, it may depend on the number of convictions, the age at which the last conviction occurred, the types crimes for which convicted, and other factors. It is, of course, most important that the applicant and the person whose criminal record you found are one and the same.
One of the more important factors is, unfortunately, probably the most difficult factor for the landlord. Does the applicant pose a credible risk to your property or to the other tenants?
I’ll leave a more detailed discussion regarding applicant criminal records to when you have an applicant who is well qualified except for the criminal record issue.
* * * * * *
Question 3
I went to the magistrate, filed a complaint to remove a tenant, and had the hearing, at which time I received possession of the property. The tenant then filed an appeal at the court house. At that time she owed us $126.50 for the cost incurred on me by the judgment and on the day of her appeal the rent was due in the amount of $500. She only paid for the appeal of $68.50 and nothing else.
It has been 10 days since she filed and she has no money to pay anything until July. I claim she is in default I and should be able to get possession without filing another appeal. The Prothonatary’s office will not speak to me and I think they screwed up by not getting any money from the tenant. I have only 9 days to an appeal according to the Notice. This is in Pennsylvania. Can you give me some guidance on this?
Answer 3
An appeal usually prevents the tenant from being evicted as long as all rules governing the appeal process are followed. One of the most important rules in most jurisdictions, unless the judge grants a waiver, is that the tenant begin depositing all monthly rent into an escrow with the court at the time the appeal is filed. Failure to open the escrow account or deposit the money in full and on time can lead to an eviction of the tenant and the eventual dismissal of the appeal.
You didn’t say whether this was a requirement for your case or, if so, whether the tenant deposited the funds into the escrow account. Different jurisdictions within PA and even different judges within a particular court may have different interpretations of the statutes and procedures.
Because failure to properly follow the court’s rules related to eviction can significantly extend the eviction period, it is often more cost effective to hire an attorney who specializes in evictions on behalf of landlords, preferably one with intimate knowledge regarding the particular court of jurisdiction. A competent attorney can also help maximize the amount of any judgment obtained against the tenant.
It is often best to obtain a money judgment even if the tenant leaves before completion of the eviction process because (1) judgments are good for 5 years or more in most states, (2) interest is added to a money judgment, (3) the judgment can be collected in any other state that the defendant might move to, and (4) judgments are sometimes unexpectedly paid off because the debtor needs to remove the item from his credit record in order to obtain a home loan.