How Many Tenants can be in a Studio?
Question
I rent a studio apartment to a woman who wants to move the two children in of which she will soon be obtaining custody from her ex-husband who has had custody until now. How many people can live in a studio?
Answer
That might depend on a number of factors including the city and state of location, the size of the unit, 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, or local fair housing laws.
It is a particularly serious issue when children are involved because 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, with potential groups not related to marital status or biological children. Even pregnancy or pending adoption can qualify the person as being of the protected classes. Some 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.
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 www.hud.gov.
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.
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.
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.
I realize that for the specific case of your question, a studio apartment, it might be impossible to apply any standards that mention number of bedrooms. For a studio, the main considerations other than any explicit laws at each level of government and absent any service limitation (e.g., water or sewer) will usually revolve around the size and layout of the unit. Whether it is reasonable to house one adult and two children in a studio apartment might also depend on the ages of the children.
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 property.
This is a question that might require you to consult with a competent and experienced attorney who specializes in helping landlords. It is best to use an attorney who is experienced in occupancy issues, even one who has enough experience with the particular court of jurisdiction or the local agencies that pursue discrimination claims. The cost of an attorney consultation will almost certainly be much less expensive than being charged with a fair housing violation.