How to Legally Set a Limit on the Number of Occupants in a Rental

By Kathelene Williams, The Fair Housing Institute

Occupancy limit policies are crucial for managing apartments, whether located in a
densely populated city or a quiet suburb. However, developing and revising these
policies can be complex. Not only do you need to be aware of fair housing laws,
but also know local laws and municipal ordinances on occupancy limits.

How could you hope to balance it all? Better yet, balance it all while trying to avoid that fair housing violation? This in-depth look into not only building your policy but also enforcing it can help you achieve that balance. First, let’s take a look at how occupancy limit policies differ depending on the type of housing.

NAVIGATING OCCUPANCY POLICIES: FEDERAL GUIDELINES VS. PRIVATE SECTOR

Starting with federally funded housing, occupancy policies are already predetermined. You can review the Keating Memo from HUD, which further explains the two person per room rule for this type of housing. However, this rule does not apply to housing such as private market or tax credit.

In all actuality, this rule has been labeled by HUD as possibly discriminatory based on familial status. Because of this, other forms of housing face the challenge of having to create their own occupancy policy and having to undergo constant revision.

BALANCING OCCUPANCY POLICIES: GUIDELINES, LEGALITIES, AND FAIR HOUSING

The best rule to follow when revising or creating your own occupancy policy is that of balance. Using the term balance as your foundation can be a little confusing, so let’s break it down.

A Balanced Policy:
First off, you need to decide upon clear guidelines without creating too much restriction. Top priority must be given to any local laws or any municipal code your property is governed under. Ensure your policy meets their minimum requirements for residents per unit or individuals per room.

The second step is to take a look at your units and your property as a whole. What can the size
and layout of the unit accommodate? Another great tip when revising or creating a policy is
resident details. This may include details such as whether a unit is occupied by all adults or if
there are children residing there as well.

There is an important note to remember when it comes to details for your residents within the
policy. You need to ensure that you do not mention specifics, such as age and gender, in order to avoid a fair housing violation. Sex is a protected category and in many states, age is a protected class.

What NOT to do:

A recent example of a property forgetting these details resulted in a fair housing
discrimination case. An apartment complex in Louisiana had a policy in place stating that two
children of the opposite sex could not share a room. Leasing agents falsely claimed that the property’s policy was based on state law when, in fact, they were discriminating against both age and sex, inciting a fair housing violation.

ENFORCING OCCUPANCY POLICIES: STEPS AND FAIR HOUSING CONSIDERATIONS

Now that you know the foundations of a good occupancy policy, it’s time to understand how to enforce it without inciting a violation. The key first step: make sure you have all the information before proceeding with a lease violation. Once you can confirm that the resident is indeed breaking your property’s occupancy policy, there are a few follow-up steps to take.

Second, follow up on disciplinary measures as laid out by your property’s policy. This may be the requirement for the resident to move to a larger unit or simply cite a violation in the lease
agreement. Remember, as a landlord, you are permitted to enforce your policy. However, there is one fair housing hurdle you and your team should be aware of.

HANDLING ACCOMMODATION REQUESTS WITHIN LEGAL LIMITS

Accommodation requests are inevitable. This includes requests from residents that break policy, including those on occupancy limits. While you want to do your best to ensure that your residents’ needs are met, there is one factor that needs to be considered. No reasonable accommodation can supersede local law or municipal codes. As an example, let’s say a resident submits an accommodation request stating that they need to break policy on a certain unit’s occupancy limit. If that policy is based on local laws stating how many individuals can be in that size unit, you will have to find a different solution for that accommodation. If the request does not break any local laws, then it is safe to follow your property’s procedures to accommodate that resident.

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KEY TAKEAWAYS FOR EFFECTIVE OCCUPANCY POLICY MANAGEMENT

In short, balance is key when it comes to any kind of policy. In the case of occupancy limits, balancing both fair housing standards and local laws and ordinances when taking a look at your policy is the best course of action. If you’re starting a new policy or revising one currently in place, there are a few key steps that should be on your checklist:

✓ Ensure your policy is clear and concise but not too specific. Take care to avoid
discriminating against certain protected categories and classes. As shown in the court
case discussed earlier, these kinds of details in your policy can lead to a fair housing
violation.
✓ As a property manager, it is your responsibility to enforce your policies. Be careful when
investigating, documenting, and explaining any lease violations you carry out.
✓ Reasonable accommodations that violate your property’s policy can happen. Ensure that
whatever the request, it doesn’t break your state’s laws on occupancy limits.

Remember, balance is key to any property with these policies, no matter the location. Let this guide help you to ensure that your occupancy limit policy meets Fair Housing standards, keeping your residents safe in their homes and locking in that property management win.

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