Fair Housing: Occupancy Standards

Guest Blogger:  Jo Becker, Education/Outreach Specialist,
Fair Housing Council
Serving Oregon and SW Washington

Following is an article by King County Office of Civil Rights.  While written with Washington state laws in mind, it is none-the-less relevant and instructive for housing providers across our service area of Oregon and SW Washington:

Occupancy standards are common in rental housing and are particularly applicable for private and professional landlords.  However, we also, on occasion, see occupancy standards in condo and homeowners’ associations, as well as in manufactured home park settings making the following germane to all kinds of housing providers.

If you have a question about your rights or responsibilities under federal, state, or local fair housing laws, please visit us at www.FHCO.org or call our free Hotline at 800/424-3247 Ext. 2.

“Have you heard that it’s okay to limit occupancy to two persons per bedroom?  Think again!

The ubiquitous two-per-bedroom occupancy standard is a very general guideline provided by the U.S. Department of Housing and Urban Development – IT IS NOT AN ABSOLUTE!  Fair housing enforcement agencies review a number of factors to determine whether an occupancy standard is overly restrictive.  Establishing a two-per-bedroom standard without making a determination of its reasonableness for the specific unit may not protect you from a finding that the standard is overly restrictive.  <In fact, we here at the FHCO have seen a growing body of case law across the country where housing providers with simplistic, across the board two-per-bedroom policies are losing disparate impact cases.>

When a housing provider limits the number of occupants in a unit, it impacts families with children more severely than families without children.  <It is illegal to deny housing to families with children simply because of the presence of children under 18 in the household under the Fair Housing Act[1] and a occupancy policy that specifies the number of children verses people is a violation of the law.  Restrictive occupancy standards can also have a disproportionate impact on some ethnic groups that, culturally and statistically have larger households.  This may be due to more children than the current US norm or because of multigenerational families sharing the same living space.  Therefore, two-per-bedroom policies may have an illegal, disparate impact on these households too, based on the basis of race, color, national origin, or religion.>

Under fair housing laws, housing providers can set reasonable occupancy standards that are based on business needs; however, the adverse effect of these standards on various protected classes requires that the housing provider justify the use of such standards.  Each situation presents a unique set of facts.

HUD utilizes guidance from the “Keating Memo” (available at www.FHCO.org/occupancy.htm), which considers a variety of factors, including the size and design of the bedrooms and the unit, the unit configuration, other physical limitations of the housing, the age of the children, and other relevant factors. HUD’s guidance notes that if a dwelling is governed by State or local governmental occupancy requirements, and the housing provider’s occupancy policies reflect those requirements, HUD considers the governmental requirements as a special circumstance tending to indicate that the housing provider’s occupancy policies are reasonable.

As a housing provider, knowledge of occupancy standards can assist you in making reasonable business decisions in compliance with the fair housing laws.  Here’s what to do if you choose to establish an occupancy standard:
1) Measure!
Get out the measuring tape and measure the rooms in your units – specifically the dimensions for each bedroom, living room, extra room, library, den, home office, or other room that may be used as a “sleeping space.”  It helps to develop a floorplan that clearly illustrates the size and configuration of the unit.

2) Find the applicable code!  Find out which local zoning or building occupancy limitations (if any) apply to your unit, house, apartment complex or community.  Apply this occupancy guideline to your units based on each unit’s specific size and configuration determined in #1 above – the resulting number of occupants the applicable guideline allows is the basis for your occupancy standard!

3) Be prepared to substantiate business-related factors!  If there are issues such as the age or condition of your dwelling and its accompanying systems (sewer, septic, electric, water, etc.) which require a more restrictive occupancy standard, be prepared to establish a clear relationship between the business-related factor and the occupancy standard.  For example, if a septic system has a limited capacity, be prepared to substantiate that factor by a statement from someone capable of making that determination.  Also, be prepared to show whether you looked at other ways to address a limited septic system that do not require a restrictive occupancy standard such as installing water-saving devices or more frequent pumping of the system.

Additional factors could be relevant in evaluating an occupancy standard case.  For example, the enforcement agency may need to determine whether the occupancy standard is applied to the number of people or the number of children occupying a unit. <The latter is specifically illegal.  Any occupancy standard you may have should indicate the number of people allowed; never the number of children allowed.>  The enforcement agency may also look at whether there is a history of “adults only” rules, segregation of families, or rules directed only at children. Overall, the fair housing agency will determine whether there is any other information that supports or refutes the allegation that the occupancy standard is being used to bar or limit children <or other protected class, such as ethnicity> from occupancy.

Civil rights enforcement agencies work to protect the civil rights of all regardless of protected class status.  They also have a responsibility to assist housing providers to make reasonable business decisions that are in compliance with fair housing laws.  Each case presents a unique set of facts and is determined on a case-by-case basis; however, housing providers who establish occupancy standards based on the above criteria will have a head start.

For many years we at the FHCO have suggested a more conservative 2+1 recommendation (two-people-per-bedroom plus one extra person for the unit).  We have not seen housing providers get in trouble for a 2+1 policy.  Given the growing body of case law around simplistic two-per-bedroom policies, we recommend this standard all the more strongly.  Better yet, as the article above details, an occupancy policy should be unique to each unit or style of floorplan and be born out of a robust analysis of all the factors hinted at in the Keating Memo.  Additional case law suggests that including young children (under two years of age) as a person for the total body count of occupants is also problematic and we do not recommend it.

We suggest that housing providers think about the individual size of the dwelling and not adopt a blanket standard for all units. If the unit or the bedrooms are particularly large, you should consider even more liberal occupancy standards than you would otherwise.

A further word of caution:  while the Keating Memo references the age of children, housing providers should use the utmost of caution and seek legal council before setting an occupancy policy that focuses on the age, beyond the recommendation to not count children under two years of age.  In addition, it is not the purview of housing providers to predetermine who shall sleep in which rooms or with whom within an unit.  These considerations are up to each individual family; not something that may be dictated by housing providers.

For more information, including a second article on the subject and additional resources, visit www.FHCO.org/occupancy.htm.  If you still have questions please call our Fair Housing Hotline at 800/424-3247 Ext. 2.


This article brought to you by the Fair Housing Council; a nonprofit serving the state of Oregon and SW Washington.  Learn more and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about your rights and responsibilities under fair housing laws?

Visit www.FHCO.org or call 1-800-424-3247 Ext. 2.

Qs about this article?  ‘Interested in articles for your company or trade association?

Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?

Visit www.FHCO.org/pdfs/classlist.pdf


[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Washington law covers martial status, sexual orientation, and domestic violence survivors, and honorably discharged veterans / military status. Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.


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