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CAN THE ASSOCIATION LIMIT THE NUMBER OF OCCUPANTS
IN A HOME?
By
Eric Glazer, Esq.
Published July 9, 2018
Some governing documents contain
language that limit the number of people that can live in a
unit. For example, the declaration may say something lie “no
more than two persons can live in a one bedroom unit” or “no
more than four persons can live in a two bedroom unit.” The
question is…..are these provisions legal and enforceable?
Both the Federal and The Florida
Fair Housing Act prohibit discrimination in housing based upon
“familial status.” What constitutes discrimination is largely
determined by rules promulgated by the Department of Housing and
Urban Development. “HUD”
I researched whether forcing a
family of three into a two bedroom unit can possibly be
classified as discrimination based upon familial status. In
HUD’s 1998 Statement of Policy, this is what they wrote:
The following hypotheticals
involving two housing providers who refuse to permit three
people to share a bedroom. In the first hypothetical, the
complainants are two adult parents who applied to rent a one
bedroom apartment with their infant child and both the bedroom
and the apartment were large.
In the second hypothetical, the
complainants are a family of two adult parents and one teenager
who applied to rent a one bedroom apartment. Depending on other
facts, issuance of a charge of discrimination based on “familial
status” might be warranted in the first hypothetical, but not in
the second.
Here is some Case law:
Under the age-of-children factor, HUD has
indicated that it might not be reasonable to include infant
children in the calculation of the occupancy standard.
Crossroads Residents Organized for Stable and Secure Residences
v. MSP Crossroads Apartments LLC. U.S. District Court,
Minnesota, 2016.
Prospective tenants who were married and had
five minor children established prima facie case of familial
status discrimination under Fair Housing Act (FHA) based on
disparate impact resulting from landlord's occupancy policy
which set maximum number of tenants for unit as number of
bedrooms plus one. Snyder v. Barry Realty, 53 F. Supp
217, United States District Court, N.D. Illinois, Eastern
Division. December 12, 1996)
Landlord’s rule requiring minimum of 170
square feet of bedroom space for a family of three, had
disparate impact on families with children in violation of FHA
and Rhode Island law. Rhode Island Commission For Human
Rights, v. Graul 120 F.Supp.3d 110, U.S. District Court,
Rhode Island.
In United States v. Badgett, 976 F.2d
1176, 1180 (8th Cir.1992) a policy requiring single occupancy of
one bedroom apartments was disapproved as a violation of the
prohibition against familial status discrimination. Similarly in
Fair Housing Council of Orange County v. Ayres, 855
F.Supp. 315 (C.D.Cal.1994) that court disapproved an occupancy
policy limiting two-bedroom apartments to two persons.
Defendants' “one person per bedroom plus one” standard
incorporates the same policy which was disapproved in Badgett
and Ayres.
The essence of familial association is
sharing living accommodations. An occupancy standard which
forbids family members from sharing a bedroom is presumptively
discriminatory on the basis of familial status unless the
defendants can prove through objective evidence a business
necessity sufficiently compelling to justify the challenged
practice. See Betsy v. Turtle Creek Assn., 736 F.2d 963,
988 (4th Cir.1984).
All I know is that I grew up in a two bedroom
– one bathroom apartment in Brooklyn. There were six of us. My
parents and four kids. Besides a lot of banging on the bathroom
door, we turned out alright. Sure, it was a tight squeeze, and
my parents slept for years in the living room, I would give
anything to relive just one more of those nights.
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