It is imperative to stay updated on local regulations and seek legal counsel, when necessary, to ensure that occupancy policies are fair, reasonable and non-discriminatory. Moreover, proactive communication, clear guidelines, and ongoing training will ensure that every staff member will maintain compliance.
Q: Is there an occupancy limit law that housing providers have to follow?
Unfortunately, there is no one clear national law for housing providers to follow. This leaves the onus on each company to create a process to help them decide what a reasonable occupancy policy looks like. One main consideration regarding this, of course, would be Disparate Impact. Having an occupancy limit that is too restrictive could result in a negative impact on families with children. You need to be able to defend your policy in the event that it ever is challenged in a fair housing complaint.
A good place to start would be to look at your local building codes for reference. Also, review the Keating Memo from HUD, as this is where we see the common standard of two people per bedroom for federally funded housing.
However, if your property is a private market or a tax credit property, you should consider your local state laws. For example, California goes beyond the typical two-person per bedroom and employs what is known as the 2+1 standard.
Q: If there is no local law, how does a property decide what their occupancy limits should be, keeping fair housing in mind?
A common scenario housing providers come across is a family that is interested in renting a two-bedroom apartment, but they have three children of varying ages and genders. It may seem like a default to insist on the two-person per bedroom practice, but as noted before, this can come across as too restrictive.
A few things to consider are the ages of the children. Commonly infants are not included in the headcount until they are roughly one to two years of age. As a housing provider, you may want to ask yourself if you want to stick to the two-person standard. Or perhaps you can look into a way in which you could expand your policy to ensure maximum fair housing compliance.
Should the occupancy limit include specifics such as age or gender?
The short answer here is no. You should never dictate who can sleep where. That decision should be left to the family’s discretion. You need only be concerned with the number of people versus the size of the apartment.
A final point to consider is to remember the difference between a family asking for a larger apartment versus a leasing agent insisting on it. Taking the time now to create a policy that is not too restrictive and training your staff on how to properly deploy it will help you in the event a fair housing claim is ever made.
Consider the following scenario: You receive a call from a resident that is inquiring about your occupancy policy. They live with their spouse, child and elderly parent. Their unit has an occupancy limit of four people. However, their elderly parent requires full-time care, so they need to bring in an additional family member to help with this as both the other adults in the home work full time. What would you do? The following four questions will help you determine the best course of action.
Q: Once you’ve set your occupancy limits for your property, is it possible to enforce them?
Yes, it is possible to enforce your occupancy limits as per your policy. However, you need to remember that there can always be exceptions, especially if a resident is requesting reasonable accommodation.
If you suspect the limits have been exceeded, what should be the first step?
The first step would be, of course, to inquire about the resident(s) who are living in the unit. If you determine that there are more people living in the unit than is listed on the lease, you would need to proceed with a lease violation. You could start by having a discussion about your occupancy policy and why you have it. It is the responsibility of the residents to comply with your policies but remember that there may always be exceptions, like in the case of reasonable accommodation.
Q: What should you avoid doing when enforcing the occupancy limits you’ve set for your property?
A best practice is to avoid talking about children. Your focus should be on how many people are occupying the unit. This is the case unless your policy excludes infants; then, you would need to inquire to make this exception.
Q: Can someone ask for a reasonable accommodation to your occupancy limit if your local laws have dictated your property’s occupancy limits?
Generally speaking, there are no rules or laws that can be excluded in the case of reasonable accommodation. When there are conflicting rules or laws at play, federal civil rights laws always win.
As property managers strive to create safe and welcoming environments for their residents, enforcing occupancy limits, while upholding fair housing compliance, remains a critical balancing act. By recognizing the importance of maintaining livability standards and respecting the rights of individuals, property managers can navigate this complex terrain successfully.
The Fair Housing Institute, Inc. provides fair housing training and not legal advice. The users of The Fair Housing Institute, Inc. web site and its educational information should understand that the information provided within its site is not a substitute for legal advice by competent attorneys. For more information, visit www.fairhousinginstitute.com.