THE LAST WORD ON OCCUPANCY POLICIES AND HUD

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Landlords obviously need to limit the number of occupants when renting their rental units. Failure to do so can accelerate the wear and tear on the premises, raise health concerns, and very importantly, encourage lawsuits based on housing discrimination. The Department of Housing and Urban Development (HUD), however, has come to the conclusion that some landlords have been using occupancy limits to discriminate against families in violation of the Federal Fair Housing Law.  If you have not yet done so, we recommend you also read our other articles on the Fair Housing Law, which you can find in the Information Center or the Quality Tenant Screening pages. This issue of occupancy limits has nothing to do with occupancy limitations contained in a lease (children, for example, are not required to sign).  The landlord can, and should, limit occupancy to lease signatories and their minor dependents, or to a list of specific persons, and can do so without violation of any Federal law or regulation.  The reasons for such limitations are different from those for an occupancy limitation policy.  Our topic, and the type of activity HUD is trying to control, is the policy that is in place to determine the number of occupants that will be permitted, regardless of who they are, and which comes up in the screening process, that is, before the lease is signed.

            In 1991, HUD’s chief counsel wrote a memorandum for the guidance of the bureaucrats charged with enforcement of the Fair Housing Law, setting out what he thought would be reasonable standards for occupancy from Orono, ME, to San Diego, CA, and Vancouver, WA, to Miami, FL.  This inevitably crass, one-size-fits-all memo was incorporated formally into a HUD policy in 1999.  This policy is well worth reading in full, after you have read and digested our precis of the same below, but before you advertise another vacancy.

The first thing that the discerning reader will observe is that the policy is dripping with weasel words like “should,” “probably,” and the like.  This is because HUD policies are no more designed to assist the public than any other bureaucracy’s policies are.  Bureaucratic policies are designed to keep bureaucrats busy, not to assist those whom they regulate or those whom they are supposed to aid or protect.  Thus, there is an important gloss on this policy:  following it will not necessarily spare the landlord from the scrutiny or sanction of a bureaucrat looking for something to do.  It is almost certain that not following the policy will result in such scrutiny or sanction, so the landlord might as well follow it.  Such a landlord might imagine himself one of a stampeding herd of wildebeest; whether or not the lions select him for lunch will depend on how good his luck is.  In any event the landlord will find that his odds of survival are far better if he sticks with the herd and that which HUD has “recommended.”

Two Persons Per Bedroom "Guideline" and Other Important Considerations

            The HUD policy, I like to call it the “Uniform Tobacco Road” (UTR) concept of tenant density, starts out with a general guideline, viz., an occupancy load of two persons per bedroom will probably be deemed non-discriminatory.  “Persons” means just that, human beings, regardless of age.  Such a policy will create a rebuttable presumption that the occupancy policy is reasonable.  In other words, it still may be deemed discriminatory if other factors are in place.  There are a number of other factors to be taken into consideration, as follows.

Total Square Footage Another Factor

            The total square footage of the unit is a factor to be taken into consideration.  For example, imagine a two-bedroom unit with a den, 1 ½ baths and plenty of living space, and ample space for parking vehicles.  While under the rule of thumb, this unit with two bedrooms would justify a limitation of occupancy to four persons; the space and availability of the den would probably change that.  After all, you could put a couple of people on air mattresses or bunk bed in the den, and with 1 ½ baths they might be able to accommodate themselves with a minimum number of breaches of the peace.  On the other hand, if the landlord has a very small unit that happens to have two smaller than ordinary bedrooms with one bath and a tiny kitchen, a landlord might be justified in limiting the number of adult occupants to two or three.  Nevertheless, the decision is going to be a matter of judgment, that is, uncertain.

Children and Their Ages

            The number of occupants might be affected by the age of minor dependents.  For example, while a one-bedroom might be limited to two persons under normal circumstances, failure to admit two adults with a three-month-old infant could be deemed discriminatory.  Going back to our example of the tiny two bedroom, the same idea would apply.  Unfortunately, the UTR policy, while it contains examples, does not provide a simple formula.  For this consideration, as for square footage, the decision is going to be a matter of judgment, that is, uncertain.

Physical Limitations-the Last Consideration

            Physical limitations of the unit, other than square footage, are the last modifying factor cited in the UTR policy.  This is by far the most tenuous and dangerous factor the landlord might cite to justify variance from the UTR policy.  The policy vaguely refers to plumbing and sewage and other amenities, and then says these could justify reducing the occupancy load of the premises.  Presumably this does not refer to dilapidation that has occurred as a result of landlord neglect or that is repairable, although this is not so stated.  Frankly, this aspect of the UTR policy is so amorphous that little beyond speculation can be said about it.

Any State or Local Laws Already on the Books?   

The landlord should bear in mind that the UTR does not pre-empt state or local law or regulations.  Where state or local regulations exist, the landlord must continue to follow them.  Unfortunately, the UTR policy uses more weasel words in this connection and does not state that the landlord will be in the clear if he follows them.  Presumably, HUD reserves the right to compel the landlord to commit an offense under local law, another example of the UTR’s crassness.  Nearly all such regulations exist at the town, city, or county level, and all are enforced at that level.  For this reason, research at the state level is not conclusive, although it should be done, just in case there is such regulation in the landlord’s particular state.  The most profitable and efficient starting point, however, is with the town, city, or county government.  This is where the major code enforcement effort is, and they enforce not only the local ordinances but state laws as well, so are knowledgeable as to both.  Since there are more than 3000 counties and who knows how many municipalities, towns and regulatory districts in the country, it is not practical to present information as to each in this article, nor will books written for a national audience be of much use.  The landlord needs to contact his local code enforcement agency and ask what occupancy regulations and ordinances exist.  These agencies go by a number of different names such as “Building Code Enforcement,” “Department of Building Inspections,” and the like.  They are easily found in the local phone book. The second best source is contacting your local apartment or landlord association. They would know or could direct you to the agency that covers such an area of law.

            Once the necessary research is done and thought given to the problem, the landlord should write down the occupancy limits policy for each of his properties or apartment communities, together with all factors that influence it.  This document should be dated and signed, then archived.  It then can be incorporated into the general rental standards policy and  be available to anyone who has a reason to see it, and will establish what the landlord’s policy is and why, and when it was formulated, in the unfortunate event he should ever be the subject of a Fair Housing complaint.

Conclusion

Not withstanding any state or local law already on the books, which obviously you will continue to follow, the Department of Housing and Urban Development (HUD) has determined that “two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act…”. We think this is a fair policy under most circumstances.

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