Recently the policy restricting occupancy to two-persons per bedroom has come into question, arguing that the occupancy standards are discriminatory because they are based on familial status. Will this be the leading trend in fair housing litigation?

But what about the “Keating Memo”?

The Keating Memo, issued in December 1998 by HUD, established the two-persons per bedroom maximum occupancy as the standard policy. According to the memo, the two-persons per bedroom rule is acceptable with some limited exceptions in light of other relevant factors. One example of an exception would be that two adult parents with an infant child should be allowed to rent a large one-bedroom.

However, this policy has been questioned in a Fair Housing complaint filed last week that it is unreasonable in that it both excludes and limits the number of families with children who can live at the owner’s properties, thus discriminating against families with children. Rather than using the persons per bedroom standard, some critics suggest that owners should use local building or zoning codes to develop a policy on the basis of square footage and accounts for the entire livable space in the unit. Another option in the complaint is that owners rely on the International Property Maintenance Code, allowing up to eight people in a two-bedroom unit measuring at 1,100 square feet.

In light of this new development, be sure to review your occupancy standard policies with an attorney to ensure they are in compliance with fair housing laws. Additionally, you should review your insurance documents and identify which types of litigation claims are covered and any relevant limitations or restrictions.

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About the Author

Author Becky BowerBecky Bower is the Communications Executive here at the Resident Screening Blog. She holds a degree in English, with a focus in creative writing, from CSU Channel Islands. Her biggest weakness is cake and favorite superhero is Batman.

9 comments

  1. 8 people to an 1,100 square foot house. Not sure who is coming up with this, but I am quite sure they do not own rentals, have no clue as to the wear and tear or the damage 8 people in a house that small can cause. If there are 8 people then I have to make the assumption that 3 to 4 of them are working, which means they should be able to pool together enough funds to cover the rent on a larger home for rent. In my experience the people packing people into homes like this are people who are here illegally. Changing the policy only encourages more illegal activity and will not and does not improve the standards of living, but in fact it could cause unhealthy and unsafe conditions. So, why would anyone want to push this? I just went to a property where there is only 4 people on the lease, yet there are 2 to 4 beds (bunk beds) in each room and in the garage. The tenant is renting rooms to, up to 5 other people. They were told each person has to have an application processed and would need to be approved. The tenant told me that none of them have identification or other documents required or necessary for the application, so that applicants can be properly screened.

    1. Dale we are seeing similar behaviors in the resort areas within Colorado. I didnt think of the illegal aspect, mostly people are trying to get away with avoiding the $30 app fee and pushing occupancy limits once they’ve signed the lease, only to be discovered during an inspection. Oh and throw a dog in there for good measure. At this point we are essentially hooped until renewal time. Wear and Tear absolutely. Bathrooms in particular, everything takes a beating with more occupants especially in Condos designed for intermittent vacation rentals and not year round housing.

      I saw a loft + 2 bedroom 2 BA yesterday that had 5 beds upstairs, (all being used) plus 2 beds in the bedrooms (dont know how many in each bed) and who probably the sofa sleeper as well all in 1100 sf so probably 8, 9, 11 people know way to know with just 4 people on the Lease. or so. Not an easy situation for PM or Owner lest we get hammered with one more fair housing thing to worry about..

  2. The “two persons per bedroom” is a guideline and not a hard and fast standard with myself and my contemporaries. There are cases where oversized rooms would justify a higher number of occupants. Just because someone filed a complaint doesn’t mean there’s a violation and I’d prefer to see settled cases cited rather than potential outcomes. The ICC limitation on bedroom occupancy is one body per 50 sqft.

  3. The previous director of our agency set an occupancy limit of two per bedroom for our single family houses. The director came from the apartment industry where he managed smaller units that could only fit two per bedroom and there was only a small living room that was not big enough to be considered a living quarters. Additionally, his thought process was if we set a standard of two per bedroom across the board for all our homes it would eliminate possible discrimination claims. Therefore, our rental application said two per bedroom. A prospective tenant inquired and simply said in her email “I have a family of nine and I am interested in this four bedroom house you have on (street name). Does your policy mean I cannot apply?” The leasing coordinator on the receiving end said “Yes, you cannot apply. You would need a five bedroom and we do not have any at this time.” Two months later along came a fair housing suit. After the HUD investigation they concluded we could not have this standard policy across the board for our single family properties that varied in size and the payout to the prospective tenant was $7000. Hard lesson learned.

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