Occupancy Standards

Owners and agents of multifamily housing are tasked with developing and implementing occupancy standards at their properties. In general, properties follow the “two persons per bedroom rule” that came from what is known as the 1991 Keating Memo at the U.S. Department of Housing and Urban Development (HUD). The memo was intended to be an internal HUD document that Congress ordered HUD to adopt in 1998, following some legal challenges. However, the memo clearly outlines that “two persons per bedroom” should not be a rigid rule and that all aspects of the housing and family characteristics should be taken in to consideration.     

The federal Fair Housing Act (FHA) prohibits discrimination based on seven protected classes. One of the protected classes is familial status. This means that a property must not discriminate against the presence of children under the age of 18.

For some types of housing, the FHA allows an exception to the familial status rule if the property qualifies as “housing for older persons” or “senior” housing. The FHA says very little about occupancy standards and defers owners and agents to follow state and local laws. In addition to the laws, memorandum, and codes, there are other items to consider. 

We recommend that owners and agents review their property’s occupancy standards to ensure that they are not overly restrictive and that the occupancy standards clearly outline that there may be additional considerations/exceptions.

Here are some of the items we would urge property owners and agents to review and keep in mind.

• FHA and HUD guidelines and suggestions
• Any local codes and guidelines that apply
• The size/configuration of the unit and capacity of plumbing, heating, cooling, and electrical
• Ages of children in the household

Fair Housing trainers and advocates often recommend adopting a “2+1” occupancy standard, meaning two persons per bedroom and one person could use another area of the unit as a “sleeping area” which is generally acceptable. Set the property’s occupancy standards to limit the “number of persons,” never the “number of children.” Document the reasons for your occupancy standards to ensure compliance. 

For example, let’s say that a property has 10 very large 2-bedroom, 2-bathroom units and 10 very small 2-bedroom, 1-bathroom units. Under certain circumstances, these units could have differing occupancy standards. 

In order to avoid becoming Fair Housing’s next test case, we recommend ensuring your written Occupancy Standards are made available to the public, and always consider there may be exceptions to the rule. Verifiable requests for reasonable accommodations for persons with disabilities must be considered and granted!

Housing Matters | Fall 2019