LAST WORD ON OCCUPANCY
POLICIES AND HUD
© Copyright 2014 Landlord.com
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
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
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
Physical Limitations-the Last
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
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.
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.