What is the law on the number of occupants allowed in a rental unit?
As a general statement, there is no national occupancy standard for rental units. Landlords must develop occupancy policies that are legally compliant at the governing level or agency requirement and appropriate to the particular rental unit and specific situation.
Legally compliant policies are commonly based upon an industry standard of “reasonable occupancy.” An occupancy policy based on a reasonable occupancy standard takes into consideration rental unit particulars and situational factors. Without fully understanding what is considered reasonable in context with federal, state, and local jurisdictions, a landlord could incur liabilities for claims of fair housing discrimination.
A commonly utilized standard for rental occupancy limits is the Department of Housing and Urban Development (HUD) guidance that “an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act.” Known as the Keating Memo, the guidance provided “that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as:
- Size of bedrooms and unit,
- Age of children,
- Configuration of unit,
- Other physical limitations of housing,
- State or local housing and occupancy codes, and
- Other relevant factors.
Since the number of bedrooms is not the only factor that must be considered in developing occupancy standards, the HUD guidance is sometimes referred to as the “two-per-bedroom-plus” rule.
The guidance goes on to state that an occupancy policy which limits the children per unit is less likely to be reasonable than one which limits the number of people per unit.
While landlords have some flexibility in developing an occupancy policy by taking into consideration the reasonable policy of two persons in a bedroom plus other relevant factors of a given situation, the guidance does not categorically set an occupancy limit for a rental unit. A landlord cannot know for certain that a reasonable two-plus occupancy limit for a unit will meet federal standards for legal occupancy. Until a landlord analyzes each situation, a legal maximum occupancy number for a unit cannot be established.
States and municipalities can set their own occupancy standards that may be different than federal standards. State and local standards are usually equal to or greater than federal standards.
In some states occupancy standards may allow fewer people to occupy a rental unit. This could result in a landlord being compliant with state standards but non-compliant with the federal standard if the HUD guidance is applied.
Occupancy standards have historically been justified based on habitability standards for health and safety, as example, allowing too many occupants makes the rental unit less safe or less healthy.
There may be local zoning or building occupancy limitations that apply to rental units. Some localities have based guidelines on the Uniform Housing Code standards which provide occupancy guidelines based upon square footage rather than the number of bedrooms.
Typically, guidelines are tied to building codes standards for the number of bedrooms, or number of square feet, but some guidelines make allowances due to size of rooms, layout of the unit, availability of other living areas, age of children, and any physical limitations of the housing such as capacity of septic/sewer or water systems.
A landlord, when developing occupancy standards for his units, must research federal, state, and local occupancy standards to determine how many people must be allowed in a particular rental unit under federal standards, under state statutes, and under local standards. There will be two sets of numbers that must be taken into consideration for occupancy standards, (1) the minimum number of occupants allowed in a particular unit, and (2) the maximum number of occupants as set by state and local health and safety codes based on the size of the rental unit and the number of bedrooms and bathrooms in the rental unit.
It may be that the safest way to avoid potential problems is to use common sense and use standards that are at least as generous as the federal standards, but follow state and local standards if those standards are more generous than federal guidelines/standards.