Landlords oftentimes face the issue of whether they can limit the number of occupants in a residential rental unit. The short answer is yes, but there are limitations and legal considerations to ensure that the policy does not violate Fair Housing laws.
In general, a landlord can limit the number of occupants in a residential rental unit if the landlord complies with Fair Housing laws. “Nothing in [the FHA] limits the applicability of any reasonable . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” See, 42 USC §3607(b)(1).
Thus, the law recognizes that a landlord has a legitimate interest in limiting the number of occupants living in a residential unit. Indeed, too many occupants in a residential unit poses safety hazards and can impose too high a demand on the functionality of the unit (e.g. plumbing, electrical, etc.). That said, Fair Housing laws limit the landlords ability to restrict occupancy of a rental unit when the limitation violates a tenant’s rights under those laws.
The Fair Housing Act – Who Is Protected?
The Fair Housing Act (FHA) (federal and Florida) protects certain classes of people from discrimination when they are renting a home. The FHA covers most renting situations except in a few limited circumstances. See 42 USC 3603(b)(1)-(2); see also HUD statement.
The Federal FHA prohibits a landlord’s discrimination in housing based on race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, and disability. Florida’s Fair Housing Act protects the following classes of persons because of race, color, national origin, sex, disability, familial status, or religion. Florida also protects military persons from discrimination. See F.S. 83.683.
Of the protected classes, “familial status” is the most notable and relevant as it relates to the issue of a landlord’s occupancy limitation policy. Relevant Florida statutes are as follows (which are very similar to the federal Fair Housing Act).
Familial Status
As most issues regarding occupancy limitations have to do with a tenant’s having children or being pregnant, landlords should know, first, that they may not prohibit persons from renting property based on the person having children or being pregnant. See e.g. Gorski v. Troy, 929 F.2d 1183 (7th Cir. 1991) (a couple was evicted from their apartment when landlord discovered that they wanted to become foster parents); Malibu Investment Co. v. Sparks, 996 P.2d 1043 (Utah 2000) (A grandmother who was being evicted because of her grandchildren); and United Properties Owners Association of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 777 A.2d 950 (2001) (landlords who were restricted from renting to families with children filed action against the municipality).
F.S. 760.22(6)(a)-(b) provides that “‘familial status’ is established when an individual who has not attained the age of 18 years is domiciled with: “(a) A parent or other person having legal custody of such individual; or (b) A designee of a parent or other person having legal custody, with the written permission of such parent or other person.”
F.S. 760.23(6) further provides that “[t]he protections afforded under ss. 760.20-760.37 against discrimination on the basis of familial status apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.”
Occupancy Limitation Policy
Even when a landlord has a facially neutral policy limiting occupancy (meaning, the landlord does not restrict occupancy based on the tenant’s number of children but rather restricts occupancy only based on the total number of persons), the landlord may still face FHA claims if the landlord’s application of the occupancy limitation results in discrimination against tenants with children.
Federal and Florida courts have recognized that when a landlord limits a tenant from having children in the rental unit or when the effect of the limitation favors tenants without children over tenants with children (or too many children), the tenant may have a cause of action against the landlord.
Florida Case Example
There is a notable case decided in 2005 that highlights the issue of a landlord’s occupancy limitations violating FHA. In Milsap, et. al., v. Cornerstone Residential Management, Inc., et. al., 18 Fla. L. Weekly Fed. D287a (U.S. District Court, Southern District of Florida, January 28, 2005), the corporate landlord instituted an occupancy limit policy, pursuant to their restrictions under a Land Use Restriction Agreement (LURA), as follows.
- One Bedroom: Maximum of Two (2) people (2 adults)
- Two Bedroom: Maximum of Three (3) people (couple & 1 heart beat per room)
- Three Bedroom: Maximum of Four (4) people (couple & 1 heart beat per room)
This occupancy policy thus prevented a tenant who had children from sharing a room with the child but permitted two adults to share one room as a “couple”, whether married or unmarried. Two tenants jointly filed a federal action under the federal FHA to prevent the landlord from enforcing that policy, and the United States District Court ruled in the tenants’ favor, reasoning as follows.
“The printed occupancy policy published and promulgated by Sanctuary Cove discriminates against families on its face: it limits residents to two children and requires that each child occupy their own room, while the same limitations are not applied to adult residents. For instance, in a one-bedroom, two adults are permitted but no children are permitted. Thus, two unrelated adults are permitted to share a one-bedroom apartment, but a single parent and one child may not.”
It was the “disparate impact” of the occupancy policy that resulted in the tenants’ success in that action, even though the expressed language of the policy did not prevent a tenant with children from renting a rental unit from the landlord.
Occupancy Guidelines
Housing and Urban Development (HUD) provides guidance on how landlords should approach occupancy limitations. To begin, let’s see how HUD answers the question of what reasonable limitations on occupancy in a rental unit are (see source):
Q: Are there any general rules for determining when occupancy limits may be discriminatory? May landlords and property managers make exceptions to their occupancy limits for certain groups of people but not others?
A: Unreasonable occupancy limits on the number of persons who may occupy a unit may violate the Act’s prohibition on discrimination against families with children. HUD guidance advises that as a general rule, an occupancy policy of two persons per bedroom is reasonable under the Act, but the reasonableness of such a policy may depend on specific facts and circumstances, including the size and configuration of the unit and sleeping areas.3 The guidance describes the factors that are used to determine whether a housing provider’s occupancy limits may discriminate because of familial status.
The Keating Memorandum provides an analysis of how to approach occupancy limitations in relation to FHA. Keating states that “owners and managers may develop and implement reasonable occupancy requirements based on factors…”. Keating offers several factors to analyze whether occupancy limitations constitute a violation of FHA, including:
- size of bedrooms and unit
- age of children
- configuration of unit
- other physical limitations of housing
- state and local law
- other relevant factors
Landlords should take into consideration these factors when creating an occupancy limitation policy and when considering whether to allow for exceptions for a particular rental unit. When all factors are considered, the landlord can determine if he or she should amend the general occupancy policy to permit more or require less than what the general policy requires.
Conclusion
Landlords may impose reasonable restrictions on occupancy of a rental unit, but the landlord may need to deviate from its general occupancy limitation policy when the policy may result in a violation of FHA, considering the Keating factors and case law such as the Milsap decision. Of course, the landlord should never favor tenants without children over tenants with children and never deny a tenant application based on the tenant simply having children or being pregnant.
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