Occupancy Standards

Overly restrictive occupancy standards can have a disproportionate affect on families with children and are, therefore, illegal. According to HUD, any occupancy standards in housing should not be more restrictive than two indviduals per bedroom, assuming average sized bedrooms. At the Fair Housing Council (FHCO), we recommend the more conservative two individuals per bedroom plus one more individual for the unit. For example, a housing provider limited a two bedroom-home to five individuals. This "two plus one" formula will help insulate the housing provider from fair housing violations based on occupancy in most situations. That being said, if the bedrooms are overly large, neither the "two per bedroom" nor the "two plus one" would be considered appropriate.

Legally limiting occupancy does not allow housing providers the right to dictate who sleeps where or with whom. Similarly, housing providers may not require that children of different sexes sleep in separate rooms.

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The following summary compliments of National Fair Housing Advocate Online:

The U.S. Department of Housing and Urban Development (HUD) issued a statement late last year confirming their adoption of the "Keating Memo." It is  a 1991 internal memorandum from former HUD General Counsel Frank Keating, which states that an occupancy standard of two persons per bedroom will generally be considered reasonable under the Fair Housing Act.  Specifically, the memo addresses the problem of occupancy standards used as a pretext for family status discrimination. 

When the Office of General Counsel sent the Keating Memo to HUD headquarters and regional counsel in 1991, Keating claimed that the two persons per bedroom standard was "rebuttable."  The memo also said that HUD officials should not use this standard alone to decide whether a landlord's occupancy standards are discriminatory. 

In their December 1998 announcement, HUD listed several other factors that investigators will use to detect whether an occupancy policy is reasonable.  They include the size and design of rooms and units, the ages of a family's children, and the state and local ordinances dealing with occupancy in the locality where the complainant has filed a complaint.

Even in cases where a landlord's occupancy policy is reasonable under the Fair Housing Act, HUD will consider evidence that shows the landlord has made discriminatory statements, set different rules for children than adults at common facilities, or taken steps to keep families with children out of a certain property.  HUD will also pursue claims against landlords who enforce a reasonable occupancy standard against families with children and not against groups of adults.

According to Fair Housing - Fair Lending, Congress spurred HUD to make the public adoption of the Keating Memo when it passed the Quality Housing and Work Responsibility Act of 1998.  Section 589 of that Act states that HUD's policy on occupancy standards should be that of the Keating Memo.

The full text of HUD's December 1998 announcement is available in the Federal Register, Volume 63, page 70,255.

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Guidance from HUD:

The "Keating memorandum" and subsequent guidance from HUD on occupancy standards can be found at www.FHCO.org/pdfs/occupancystdsHUD.pdf.

Guidance from Washington State Human Rights Commission:

www.FHCO.org/pdfs/occupancystdsWSHRC.pdf

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Where Can I Learn More?

Contact us at 800/424-3247 or information@FHCO.org.

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