Occupancy Standards and Fair Housing
By: Kristen Wills – North Carolina Associate Attorney with Brownlee Whitlow & Praet, PLLC
How many is too many? Well, it depends. You have a family who applies to reside at your rental property. The family consists of 2 adults and 4 children. The family applies for a 2-bedroom 2-bathroom unit and the unit is about 1000 square
feet. Do you have to accept this family or will a denial of the rental application subject the property to Fair Housing issues?
The Fair Housing Amendments Act of 1988 and the North Carolina Fair Housing Act prohibit discrimination or differing treatment in the sale or rental of housing based upon race, color, religion, sex, national origin, familial status/families with children under the age of 18, and disability. Discrimination practices based on familial status includes differing treatment
based on the presence or expected presence of children under 18 years of age, pregnant women, and individuals securing
the custody of children under 18 years of age. One of the biggest issues for familial status discrimination is occupancy standards and overly restrictive policies impacting occupancy.
For many years most housing providers followed the general rule of two persons per bedroom (known as the “Keating Memo”), and for some time, this was considered to be a reasonable and safe approach for housing providers. However, the United States Department of Housing and Urban Development (HUD) has more recently pulled back from the Keating Memo and indicated that the two persons per bedroom standard is a presumed standard that can be overcome by consideration of multiple factors. HUD suggests housing providers consider multiple factors when addressing occupancy, including but not limited to, the size and configuration of a particular unit, the composition of the applicant family, and does the premises include an enlarged dining room area, sunroom, or office space that could be used as a bedroom to name a few. Housing providers should further consider the age of the occupants and the physical limitations of the building (e.g. sewer capacity).
One potential safe harbor is to review state laws and local ordinances, as compliance with such laws stands to avoid liability. In some locations, state and/or local regulations may provide guidance on occupancy standards based upon the
size and structure of the premises. In the absence of any such regulations, the challenge for housing providers is that there
are no bright line standards at this time. Each applicant family must be considered along with the particular unit they are looking to rent as part of the analysis.
In summary, housing providers should avoid blanket policies restricting occupancy to two persons per bedroom and
must review the circumstances in their totality. Any rigid or unwavering policy that overly restricts the number of related individuals who are allowed to occupy a rental home is likely to subject the housing provider to liability. It is much safer to
have a policy of two persons per bedroom plus one additional person with the understanding that you may still have to be flexible in such policy depending on the considerations set forth above.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.
