Are Occupancy Limits Legal?

Rent It Right

by Janet Portman, Inman News

Q: We make our living by buying, fixing up and renting single-family homes. One home is quite small; it has a modest master bedroom, a very small bedroom and a really small den. There’s no garage and no yard. We feel it is suitable for four occupants, but were challenged recently when a family with two adults and three children asked to rent it. When we told them that we thought the house could not bear the wear and tear from this number of residents, they accused us of discriminating. Were we? –Don and Helen P.

A: You’re up against the federal ban against familial discrimination. Landlords in most situations may not refuse to rent to families with children, and they may not indirectly exclude such families by setting overly restrictive occupancy limits (the law presumes that an occupancy policy that permits fewer than two people per bedroom is too restrictive).

For example, a landlord who insists on one person per bedroom will naturally end up turning away families whose children could easily and safely share a bedroom. Importantly, aggrieved prospects need not prove to a court that the landlord intended to exclude families; as long as the practice has the effect of discouraging or eliminating families, it’s illegal.

The “two per bedroom” standard isn’t absolute, however. As far back as 1989, HUD counseled that, in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit.

If you intend to limit bedroom occupancy to fewer than two persons, you’ll need to make your case under that standard, which boils down to a deceptively simple question: Is your policy reasonable?

We’d need to know more about your rental, and your plans for it, to answer this question. Do applicable building or zoning codes specify minimum square footage per person for sleeping quarters, and does your second small bedroom make the cut? What about three persons in the “master” bedroom? Perhaps those rooms simply cannot legitimately accommodate the prospects; and you might look into whether the “den” is big enough, too.

You might go further and argue that, for example, landlords in your neighborhood generally follow your practice (that is, dens remain dens and small bedrooms are not crammed with sleepers). But be forewarned of a strong argument against you, one that decries your reliance on genteel rental practices at the expense of housing families.

Your track record as a landlord will also be relevant should this matter come before a judge. If your other houses are filled with families, with two persons per bedroom (or, better, slightly more) appropriately living in them, it will be hard to cast you as a discriminating landlord (although your intentions, as noted above, aren’t technically relevant, your past practices invariably become a factor).

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of “Every Landlord’s Legal Guide” and “Every Tenant’s Legal Guide.” She can be reached at [email protected].
Copyright 2010 Janet Portman

See Janet Portman’s feature, Higher Risk, Higher Deposit.

American Apartment Owners Association offers discounts on products and services for landlords related to your commercial housing investment, including real estate forms, tenant debt collection, tenant background checks, insurance and financing. Find out more at

To subscribe to our blog, click here.