Occupancy Limits and Fair Housing: How to Stay Legal and Family-Friendly
Why occupancy limits matter under the Fair Housing Act
Setting how many people may live in a unit is not just a building-code or comfort issue—it is a fair housing issue. Under the U.S. Fair Housing Act (FHA), policies that exclude families with children or disproportionately burden protected groups can constitute unlawful discrimination, even when the rule appears neutral. In practice, the most common tension arises between a landlord’s desire to cap density and the FHA’s protection of familial status (households with one or more children under 18).
Key idea: The federal government does not impose a single national number. Instead, HUD and DOJ generally treat “two persons per bedroom” as a presumptively reasonable starting point—not a hard cap. Investigators look at multiple factors to decide what is reasonable for a specific unit.
Protected classes & the risk of disparate treatment or impact
The FHA bars discrimination on the basis of race, color, religion, sex (including sexual orientation and gender identity), national origin, disability, and familial status. Two pathways can create liability with occupancy limits: (1) disparate treatment (different rules for households with children) and (2) disparate impact (a neutral cap that disproportionately screens out families with children or people with disabilities, without adequate justification).
The HUD “two-per-bedroom” presumption—and how it actually works
HUD’s enforcement playbook—often called the Keating Memorandum—says that a policy allowing two persons per bedroom is usually reasonable. But the analysis is fact-specific and may justify more (or occasionally fewer) occupants. Investigators and courts weigh unit-level details, local health & safety codes, and whether the rule is being used as a pretext to exclude families.
Factors HUD considers (multi-factor test)
- Bedroom count and size (square footage, layout, presence of dens/lofts that function as sleeping areas).
- Overall unit size (total square footage; large living areas can support more occupants).
- Age of occupants (infants and very young children may justify higher density than adults).
- Physical limitations of plumbing/septic systems and building safety codes.
- Configuration (e.g., split bedrooms, extra rooms, convertible spaces).
- Special circumstances (reasonable accommodations related to disability; temporary stays that don’t change sleeping arrangements).
- Intent and consistency (is the policy applied uniformly, or used selectively against families?).
Local codes vs. fair housing: which governs?
Local building, fire, and health codes often set minimum habitable space and occupancy loads (e.g., square-footage per person, egress). Those rules remain important—and a landlord can rely on them as part of a legitimate, safety-based justification. Still, compliance with a local code does not automatically resolve an FHA claim if the rule targets families or is enforced pretextually.
Common standards in practice
While “two-per-bedroom” is the federal presumption for enforcement, some states or agencies use more flexible heuristics. A well-known example is “two-per-bedroom-plus-one” (2+1), which acknowledges dens/lofts or larger living rooms that reasonably accommodate a small child. Treat these formulas as guidelines—not automatic rights or caps. Always reconcile them with local code and the unit’s actual characteristics.
Practical reading of the chart
- 2/BR (4 people) is generally defensible for a 2-bedroom.
- 2+1 (5 people) can be reasonable where living areas or dens function as sleeping space, or with very young children.
- 5–6 people may be reasonable in larger 2-bedrooms with big rooms/loft—if consistent with codes and applied neutrally.
Reasonable accommodations and special situations
Disability-related needs
Providers must consider reasonable accommodation requests when a disability necessitates a different arrangement (e.g., a live-in aide). A facially neutral cap cannot override the FHA’s accommodation duty unless it would cause undue burden or fundamental alteration, or violate health/safety law.
Infants and very young children
HUD’s analysis allows higher density where infants or very young children share a bedroom with parents, especially when the unit is otherwise suitable. A categorical rule that counts a newborn as a full adult for occupancy may be suspect if it forces families to move or pay for larger units without a safety basis.
Senior housing
“55+” or “62+” communities have limited exemptions from familial status rules, but must still comply with other FHA protections (e.g., disability). Even in senior housing, caps must follow health and safety codes and be applied uniformly.
How to design a compliant occupancy policy
- Start with a neutral baseline. Adopt a written standard (e.g., “two persons per bedroom”) as a presumption, not a rigid cap.
- Layer in unit-specific factors. Define when you may permit additional occupants—large bedrooms, extra dens/lofts, total square footage, and the age of children.
- Cross-reference local codes. Cite the specific building/fire/health code provisions you rely on (square-footage per person, egress, septic capacity).
- Provide an exceptions workflow. State how tenants can request reasonable accommodation (disability) or case-by-case flexibility (e.g., newborn).
- Train staff. Ban statements like “No kids,” “no more than one child in any unit,” or steering families only to larger, costlier units without legitimate reason.
- Apply consistently and document. Keep notes showing how factors and codes were evaluated for each decision.
- Avoid proxy rules. Seemingly neutral limits (e.g., “no strollers,” “no toys on balconies”) may function as family bans; use safety-based, reasonable time/place/manner rules instead.
What to avoid
- Rigid “one-size-fits-all” caps that ignore bedroom size or layout.
- Counting every infant as a full person when it creates eviction pressure without a safety rationale.
- Applying a stricter cap only when a household includes children, or selectively enforcing against families.
- Relying solely on private community policies that conflict with building/health codes or FHA obligations.
Enforcement patterns & evidence that matters
HUD/DOJ and fair-housing testers focus on whether a rule or its enforcement makes it harder for families to obtain housing. Common red flags include: refusing to show smaller units to families while showing them to adult-only households; telling families that a two-bedroom “only fits two adults” regardless of size; and blanket rejections when a newborn arrives. In investigations, contemporaneous notes, measured square footage, and written code references help demonstrate that decisions were safety-based and not pretextual.
Evidence checklist for housing providers
- Written policy with the two-per-bedroom presumption and unit-specific exceptions.
- Floor plans and measured bedroom/overall square footage on file.
- Local code citations (and, if relevant, septic capacity documentation).
- Accommodation request forms and logs showing interactive process.
- Training records; spot-checks for consistent application across households.
Worked examples
Example 1 — 2BR/1BA, 825 sq ft; bedrooms 11’×11′ and 10’×10′
Baseline 2/BR → 4 persons. Given modest bedroom sizes and no den, a fifth occupant would likely require additional support (e.g., very young child in crib) and compliance with egress/space minimums. If local code allows and the child is an infant sleeping with parents, permitting 5 can be reasonable with proper documentation.
Example 2 — 2BR + den/loft, 1,050 sq ft; large living room
A “2+1” (5 persons) policy is often reasonable. If the den is a bona fide sleeping area (privacy, ventilation, egress) and codes permit, up to 6 could be reasonable—especially with two young children sharing.
Example 3 — 3BR townhouse, 1,400 sq ft; all bedrooms 12’×12′
Baseline 2/BR → 6. With strong sizes and multiple baths, 7 (or even 8 with infants) may be reasonable if life-safety and plumbing capacity are satisfied.
Draft language you can adapt
Occupancy Standard (Model Clause)
We apply a neutral presumption of two (2) persons per bedroom. This is a guideline, not a cap. We evaluate unit-specific factors—bedroom and unit size, layout (including dens/lofts), applicable building/health codes, the age of household members, and system capacity (e.g., septic). We consider reasonable accommodation requests related to disability and case-by-case flexibility for infants and very young children. Occupancy decisions are documented and applied consistently without regard to familial status or other protected characteristics.
Legal sources & practical references
- Fair Housing Act overview; familial status protections.
- HUD’s adoption of the Keating occupancy analysis (two-per-bedroom presumption + multi-factor test).
- State/agency heuristics (e.g., “2+1”) as flexible intake standards, not hard caps.
- Research on how occupancy rules and steering can affect families with children.
Conclusion
There is no universal magic number. A compliant policy starts with a neutral presumption, then weighs specific unit characteristics and local codes, and remains open to reasonable accommodations. Document your analysis, train staff, and apply the rule consistently. Done this way, occupancy limits can advance safety and livability without crossing fair-housing lines.
Quick Guide — Occupancy Limits & Fair Housing
- Start neutral: Use a written baseline like “two persons per bedroom” as a presumption, not a rigid cap.
- Document unit facts: Bedroom and unit size (sq ft), layout (dens/lofts), baths, egress, ventilation, system capacity (e.g., septic).
- Check local code: Fire/health/building rules (minimum habitable area; occupancy loads) support—but don’t replace—FHA compliance.
- Flex for families: Age of children matters; infants/toddlers may justify higher density where safe and code-compliant.
- Reasonable accommodations: Disability-related needs (e.g., live-in aide) can require exceptions absent undue burden/safety conflicts.
- Apply consistently: No steering; no stricter caps only when children are present; avoid “no kids” proxies (e.g., blanket stroller/amenity bans).
- Train and log: Staff training + contemporaneous notes showing why a case was allowed/denied (codes cited, sq ft measured).
- Escalate edge cases: Large 2BR + den may support 5–6 persons; small 2BR may be limited to 4; always tie back to codes + safety.
FAQ
Is “two persons per bedroom” a hard federal rule?
No. It is a presumptively reasonable starting point in HUD enforcement. Investigators still weigh unit size, bedroom dimensions, layout, age of children, and local codes.
Can I use a “2+1” formula (two per bedroom plus one more)?
Often reasonable for units with a den/loft or large living area that safely functions as a sleeping space. Treat it as a guideline, not an entitlement.
Do infants count as full occupants?
Counting a newborn as a full adult in every case can raise familial-status concerns. Many policies allow flexibility when an infant shares a room with parents, subject to safety and code.
What if local code allows fewer (or more) people than my policy?
Code compliance is mandatory. If code is stricter, follow it; if code would allow more, you may still use a neutral cap, but justify it with safety and apply it consistently.
Can I require families with kids to rent larger units?
Not categorically. Steering families to larger, costlier units without a legitimate, documented safety/code basis risks disparate treatment.
How do reasonable accommodations work for disability?
If a disability necessitates a different arrangement (e.g., a live-in aide), consider an exception unless it creates undue burden, fundamental alteration, or violates health/safety law.
Are senior (“55+”/“62+”) communities exempt?
They have limited familial-status exemptions, but still must comply with other FHA protections and safety codes. Apply occupancy policies neutrally and document the basis.
What records should I keep to defend decisions?
Floor plans; measured sq ft; code citations (egress/habitable area); notes on age of children; accommodation logs; staff training records.
Can I deny a household because a den has no window?
If code requires egress/ventilation for sleeping rooms and the den lacks it, you can rely on that requirement. Reference the exact code section and document the inspection.
Does disparate impact apply to occupancy limits?
Yes. A neutral policy that disproportionately excludes families with children can violate the FHA if not supported by legitimate, evidence-based justifications and if less-discriminatory alternatives exist.
What phrases should staff avoid?
“No kids,” “We only rent 2BRs to two adults,” “Newborns count as full adults, period.” Use neutral, code-based explanations instead.
Legal Toolkit & Authority Notes
- Fair Housing Act, 42 U.S.C. §§ 3601–3619 (familial status, disability, disparate treatment/impact frameworks).
- HUD Occupancy Standards Statement of Policy, 63 Fed. Reg. 70256 (Dec. 18, 1998) (adopting the “two-per-bedroom” presumption with a multi-factor analysis; roots in the 1991 Keating Memo).
- HUD/DOJ Joint Statement on Reasonable Accommodations (May 17, 2004) (duty to accommodate disability-related needs; 24 C.F.R. § 100.204).
- Regulatory definitions: 24 C.F.R. Part 100 (FHA regulations); 24 C.F.R. § 5.403 (familial status).
- Disparate impact: Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project, 576 U.S. 519 (2015).
- Zoning/family definitions vs. FHA: City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) (distinguishing safety rules from family-composition limits).
- Local codes: Adopted building, fire, and health codes (minimum habitable area; egress; occupancy loads; septic/plumbing capacity)—vary by jurisdiction.
Practical citation tip: When denying or approving an exception, quote the exact local code section (e.g., minimum square footage per person; egress/window requirements) and attach a simple measurement sketch to the file.
Final Considerations
There is no universal “right number.” Start with a neutral presumption, integrate unit-specific facts and local safety codes, remain open to reasonable accommodations, and apply the policy consistently. Train leasing staff to explain decisions in safety/code terms—not in terms of household composition—and to keep straightforward documentation.
Important Notice — Not a Substitute for Professional Advice
This material is for educational purposes and does not constitute legal advice. Fair-housing outcomes depend on specific facts and local law. Before adopting or enforcing an occupancy policy, consult a qualified attorney or fair-housing agency and verify current building, fire, and health-code requirements in your jurisdiction.