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Everything That You Need To Know About HUD Occupancy Limits

As a landlord, it is your responsibility to ensure the safety and habitability of your rental properties. This includes adhering to occupancy limits to prevent overcrowding. However, determining the appropriate number of occupants can be...

As a landlord, it is your responsibility to ensure the safety and habitability of your rental properties. This includes adhering to occupancy limits to prevent overcrowding. However, determining the appropriate number of occupants can be a complex task, with federal guidelines leaving room for variation and potential discrimination concerns.

In this article, we will delve into the subject of occupancy laws, exploring the existing regulations and their impact on your business. By gaining a better understanding of the rules and guidelines, you will be able to make informed decisions that protect your tenants without infringing upon their rights.

A Table Of Contents For Federal Occupancy Standards

  • What Are Occupancy Standards?
  • The Keating Memo & Fair Housing Amendment
  • General Occupancy Standards: Federal, Local, And More
  • How To Set Your Occupancy Rules

What Are Occupancy Standards?

Before we dive into the specifics, let us first clarify what occupancy standards entail. These standards establish the maximum number of individuals that can reside in a bedroom or property. Typically, they are based on factors such as the number of bedrooms and livable square footage. The Department of Housing and Development (HUD) sets the federal occupancy standards, which form part of the Fair Housing Act Amendment. However, cities, localities, and states may have their own additional regulations.

The Keating Memo & Fair Housing Amendment

In 1998, HUD adopted the guidelines outlined in the Keating Memo, which played an essential role in managing landlord-tenant relationships. This memo was prompted by a need to address confusion surrounding occupancy rules in light of the Fair Housing Act's familial status protection.

Originally, familial status was included as a protected class in the Fair Housing Act in 1988. This addition aimed to prevent discrimination against families with children or pregnant individuals. The introduction of familial status as a protected class led to tensions between occupancy standards and the Act itself.

To provide clarity, General Counsel Keating devised the Keating Memo in 1991. This memo offered suggested guidelines, including policies such as two-person per bedroom unless other habitable spaces are available, consideration of bedroom sizes, and exceptions for small bedrooms. Although the memo is not definitive, it serves as a starting point for landlords to establish their occupancy rules within the bounds of the Fair Housing Act.

General Occupancy Standards: Federal, Local, And More

Determining the appropriate occupancy rules for your properties can be challenging due to the absence of a universal standard. However, certain guidelines must be followed to ensure compliance with the International Property Maintenance Code (IPMC) and the Fair Housing Act.

The IPMC provides specific rules for occupancy when state or local laws fall short or are inapplicable due to the Fair Housing Act. These rules include minimum square footage requirements for bedrooms and shared spaces, limitations on using non-habitable rooms as bedrooms, and overall occupant limitations based on the property's size.

Additionally, cities and states have their own occupancy regulations based on factors like room count, square footage, and other considerations. To ensure compliance, consult local housing committees and familiarize yourself with regional guidelines.

When it comes to violations of HUD occupancy limits, complaints alleging discrimination under the Fair Housing Act require thorough investigation. Instances such as explicitly discriminatory statements, imposing additional fees based on family status, differential enforcement of occupancy policies, or marketing as adults-only can substantiate claims of discrimination.

How To Set Your Occupancy Rules

As a landlord or property manager, establishing suitable occupancy limits is crucial. While a simple two-person-per-bedroom policy may seem appealing, it can be discriminatory under some circumstances. To create fair and reasonable rules, consider the following factors:

  • Overall square footage
  • Distinction between livable and uninhabitable space
  • Septic or sewer limitations
  • Age at which a child becomes an occupant (excluding infants)
  • Applicable state occupancy regulations

It is essential to establish restrictions on the number of occupants that align consistently and reasonably with the property's characteristics. For instance, if septic systems in your area are small, it may be reasonable to limit a two-bedroom home to two occupants, regardless of its size.

States like California provide a general guideline of two persons per bedroom plus one, which can serve as a benchmark for your policy.

Avoid Violating The Fair Housing Laws

To prevent violating the Fair Housing Act, keep the following guidelines in mind:

  • Consider bedroom size and livable space when determining occupancy limits.
  • Establish the same limits for identical units while customizing rules for different types of units.
  • Set an age limit for counting a child as an occupant (e.g., three years old).
  • Pregnant women should be counted as one occupant.
  • Inform all potential residents of the occupancy limits, not just those with children.
  • Publicly post your policies.
  • Ensure compliance with local, state, and building codes, fire codes, and zoning requirements.

Consider Creating An Overall Policy

If you manage properties in different areas, you may want to devise a single policy that applies to all units, unless local laws prohibit this. Different policies across regions can be seen as discriminatory. By combining rules from different areas, you can demonstrate that your policy is based on your company's requirements rather than the people you rent to.

Document Your Policy

Documenting your occupancy policy, including the rationale behind it and sources of regulation, is essential. This documentation will prove valuable if you ever face accusations of discriminatory occupancy practices. Review the property and room configurations for each unit, align the occupancy rules accordingly, ensure compliance with local regulations, and keep comprehensive records of the process.

Deciding What's "Reasonable"

HUD occupancy standards remain a complex issue, as determining what is reasonable can depend on various property-specific factors. To navigate these intricacies, it is essential to familiarize yourself with national and local laws governing occupancy. Clear and consistent policies will help minimize complaints and ensure a fair and compliant occupancy procedure.

Consider Creating An Overall Policy Consider Creating An Overall Policy