MHCO Columns

Fair Housing Pitfall: Overly Restrictive Occupancy Standards

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While vital to prevent overcrowding, occupancy standards may violate fair housing rules to the extent they have the effect of excluding families with children.

Spot the Discrimination Mistake

A tenant who shares a one-bedroom apartment with her husband tells the landlord she’s pregnant with the couple’s first child. Along with a smile and warm congratulations, the landlord offers her an eviction notice. Explanation: Once the baby is born, the couple will be over the community’s strict two-person-per-bedroom occupancy standard.


Pitfall: In 1991, HUD issued guidance called the Keating Memo establishing two-per-bedroom as the default standard for reasonable occupancy standards. However, attorneys caution that the most common mistake landlords make with occupancy standards is applying the two-per-bedroom rule on a blanket basis. The reasonableness of a particular occupancy standard depends on the specific situation. Thus, two-per-bedroom may be too restrictive for some situations and not restrictive enough for others.  

Example: A Connecticut landlord forced a married couple to move out of their one-bedroom apartment for violating the community’s two-per-bedroom occupancy standard after the wife gave birth. I just followed the Keating Memo, the landlord claimed. But the court didn’t buy it, noting that Keating is a “totality” test that the landlord applied as a blanket rule without considering the other factors the Memo cites, like the size and sleeping area of the bedrooms [Gashi v. Grubb & Ellis Property Management Servs., 801 F. Supp. 2d 12 (D. Conn. 2011)].  

Solution: While two-per-bedroom might be the starting point, landlords must consider other factors listed in the Keating Memo to determine how many people can occupy it in safe and habitable conditions, including:

  • How big the bedrooms are: Rejecting a family of five for a two-bedroom apartment might be unreasonable if at least one of the bedrooms is large enough to accommodate three persons. By the same token, it may be justifiable to refuse to rent a two-bedroom unit to a family of four if one of the bedrooms is too small for two people to share safely and in habitable conditions.
  • Size and configuration of the apartment: Consider the unit’s overall size and configuration, including other rooms or spaces that can be used as bedrooms. Thus, two-per-bedroom may be too restrictive for an apartment with a den that can be easily converted into a bedroom; but it may be not restrictive enough for an apartment that doesn’t have ample living or dining room space per occupant.
  • Physical limitations on the property or building systems: Consider the age and condition of the building, including the capacity of water, sewer, sanitation, electrical, HVAC, and other critical building systems. Thus, for example, occupancy standards of less than two-per-bedroom may be justifiable for older buildings with crumbling and fragile infrastructure.
  •  Age of children: Occupancy standards are typically based on the premise that occupants can share bedrooms. However, the age of the child(ren) may challenge the basis of that premise. For example, suppose a couple wants to share a one-bedroom apartment with their child in violation of the landlord’s two-per-bedroom standard (absent other factors):
    • Child is a newborn or infant: Rejecting the couple is likely to be unreasonable;
    • Child is a teenager: Rejecting the couple is likely to be reasonable.

Caveat: Age doesn’t come into play in determining whether children of different sexes can share a bedroom. The Rule: Whatever your moral views, you can’t require male and female children to have separate bedrooms, regardless of their age. Period.