Community Associations Institute (CAI) supports the right of community associations to establish reasonable occupancy standards. This support does not condone or encourage discrimination against owners based upon familial status or other protected class. In the absence of any bright line rule being adopted by the Department of Housing and Urban Development, an occupancy limit of two persons per bedroom plus infants is typically an acceptable limitation. CAI remains concerned that with no bright line rule community associations are at risk for claims of discrimination under the Federal Fair Housing Amendments Act.
The Federal Fair Housing Amendments Act ("FFHAA") prohibits discrimination on the basis of familial status. Familial status discrimination is discrimination against families with minor children. HUD has stated "there is nothing in the legislative history which indicates any intent on the part of Congress to provide for the development of a national occupancy code." HUD evaluates claims of discrimination in violation of the FFHAA on a case by case basis and may try to informally resolve complaints according to a December 18, 1998 Federal Registry notice.
Factors used in evaluation of a claim:
Size of bedrooms and of the unit
Age of children
Configuration of the unit
Other physical limitations of the unit (e.g., septic system)
Reasonable state or local law restrictions
Whether the limits are on the number of people, not children
Any other relevant factor
Part of the difficulty for community associations is that there is no black and white answer, no ‘bright line rule’, because all housing units are not the same across our nation. This explains why a multiple of factors is used in each case which adds to the complexity of this matter.
While one Ninth Circuit Court of Appeals case in 1996 expressed a concern about the complexity of law in the housing area and admonished the HUD Secretary to enlighten the public as to expectations, it seems that little has changed in terms of available guidance.
Like the law abiding property owner, community associations also have difficulty determining what occupancy restrictions are permitted under the FFHAA. While it may be generally safe to assume that an occupancy limit of two persons per bedroom plus infants is typically an acceptable limitation, before challenging an applicant the prudent community association manager or community association board of directors is encouraged to seek the advice of its legal counsel. With legal counsel, you may also want to develop a reasonable occupancy policy. The same recommendation applies to unit owners who offer rentals in an association.
Please also refer to CAI’s Fair Housing Public Policy.