Question from a Blog Reader 

A friend of mine works for a property management company. They based their occupancy standards on local law, which lays out a simple two-person-per-bedroom standard. They were challenged in a Fair Housing complaint based on two infants and familial status, and the standard was strongly suggested by HUD not to be reasonable in that case. The owners conciliated as the attorney fees would quickly add up to more than the tens of thousands paid in the conciliation. However, it has me worried, as we have adopted the same policy based on local ordinance. How can we safely develop occupancy standards if even local law may be determined to be discriminatory?

Answer

Summary Answer: The Fair Housing Act, is a federal law. As such, local or state ordinances that differ from Fair Housing can get an owner/agent in trouble with the federal law. That said, HUD does give great weight to local laws when analyzing a Fair Housing occupancy standard complaint. Still, strict standards (such as two-per-bedroom) with no analysis of specific property characteristics is not necessarily Fair Housing-safe. However, HUD has provided helpful guidance to help assess individual properties and set good occupancy standards.

While it is true that occupancy standards help us treat people fairly and consistantly, all units and properties are not physically created equal. For this reason, a one-size-fits-all occupancy standard isn't always reasonable.

To provide guidelines to assist in the development of good occupancy policies, HUD published a document known as the Keatimg Memo. In the Memo, HUD tells us that the size of the unit or the bedrooms within may reasonably affect the number of persons the unit can hold. Additionally, the age of children in a household may be a factor. An infant is a different factor than older children, for instance. Other unit configuration factors also matter. For example, extra rooms such as dens or other living rooms may be a factor. Other physical limitations, such as older plumbing with practical use limitations, may also be considered. We suggest that the details listed in the Memo will help owner/agents and their legal counsel to assess their occupancy standards. 

The Keating Memo is available HERE