Minimum Occupancy Enforcement - HELP

14 Replies

Greetings all. Quick question. I want to make sure that I am correct in upholding my occupancy limitation of 2 people for my 1 bedroom rental property. I read the Fair Housing Memo which outlined their interpretation of the minimum occupancy to be 2 persons per bedroom.  I've reached out to Building and Safety Dept. in Los Angeles with no luck in getting a clear answer. Can anyone help clarify this. Can I legally reject an applicant for my 1 bedroom rental if they are a single parent with 2 kids ( equals 3 total people)? What about if its 2 adults and a 5 year old? Is that 3 people? What is the age threshold that constitutes an additional "person?" What are my options? Thank you all in advance.  

Legal/illegal is a very gray area.

Looking for legal reasons to reject applicants is only going to lead to accusations of violations of their rights. Best to avoid the situation by not giving reasons for rejecting.

Do not reject any applicant until you have the one you want. You then simply inform all other applicants that unit has been rented.

It's your investment, choose the tenant you believe is most suitable.

There isn't an age limit.

Many feel that two per bedroom plus one in the living room is acceptable, so that would be three for a one bedroom.  I limit mine to two per bedroom though.

You can look in the tenant-landlord law and the fire marshall site to see if your area has any set rules, but normally it is up to the landlord to set the occupancy.  I try to advertise it and make it really transparent.

You are probably OK to stick to 2 per bedroom, but make sure you are not discriminating against children.  Don't allow 3 adults but not a combination of adults and kids; treat all bodies the same and apply it consistently.

Did you mean maximum? I read minimum.

@Jacqua Le Fleur - If you are trying to not rent to a tenant, I would suggest just holding the application and continuing to take others, and then not providing a reason for the rejection. Just saying that you chose anotehr tenant. Landlords get into trouble by saying why they do not rent to a certain applicant, as almost any justification can be twisted to make it actionable. What is really hard, is to evict a tenant under rent control for this reason. As others have said, while the HUD guidelines are typically looked at, it will be difficult for you to establish that you are not discriminating against a protected class (if some of the tenants are children), or otherwise using a pretext to bring the unit back to market rates after eviction.

Thank you all. I am going to stick to California's 2 +1 standard, and Im going to take the approach you have mentioned - to simply say that the unit has been rented to somebody else.

@daviddachtera. Openly stating my income, credit, occupancy (in accordance with HUD and California code), and background check can get me in trouble? I am planning on accepting all applications, accepting the best candidate and then informing all other applicants that someone else was selected. This approach can still land in me in a pickle? Thanks.

@David Dachtera  Openly stating my income, credit, occupancy (in accordance with HUD and California code), and background check can get me in trouble? I am planning on accepting all applications, accepting the best candidate and then informing all other applicants that someone else was selected. This approach can still land in me in a pickle? Thanks.

@Jacqua Le Fleur ,

In many locations, you MUST take the first qualified applicant, even if "more qualified" applications are later received. Do otherwise, and you risk prosecution for illegal discrimination. Check with your local authorities. Also, check with your legal counsel regarding the local tenant / landlord regulations.

As an example of occupancy insanity (well, I think so!) in this town, only four unrelated people can occupy a SFR. So an unmarried couple with 3 adopted kids can't live in a 5-bedroom house!

On the other hand, there's no limit to the number of related persons who can occupy a residence. So you can have ten people in a one-bedroom property (yes, I can give you a tour & point some out!).

Point being: check your local regulations & don't rely solely on HUD guidelines; find out for sure.

I agree with @Kathleen Leary , check your local regulations. The HUD guidelines say 2 per bedroom, but most local ordinances restrict that much further. Like here in my town, we have a You+2 rule, which basically says that more than 3 unrelated adults would be illegal, so although HUD says 2 per room, if I had a 4 bedroom house, I could not rent to 8, I am limited to 3 unrelated. Now if it's a family that doesn't matter, and if they are under 18, even if unrelated, they would be covered if their guardians lived there and there were no more than 3 unrelated adults.

Anyway, my point is to check your local guidelines. 

Also, like @David Dachtera said, be careful how you reject applicants. If you are worried about it, have them apply and if they don't meet your minimum criteria then you can reject without fear of a lawsuit, like if they don't qualify based on your credit criteria or income criteria. But rejecting because they have 3 people would likely be discrimination in the eyes of the FHA.

Remember, always set your acceptance criteria, publish it with your marketing materials, and stay consistent. Run actual screening reports and be sure to have a legit application process, all this is designed to help you find better tenants, and stay out of the courts. 

Let us know if you have more questions, we're here to help!

In CA, you are legally required to accept the first qualified applicant.

The 2+1 rule will generally keep you in compliance in CA

HUD is 2 per bedroom

The federal health department is a bit more complicated.

Last time I checked it was 70sqft for 2people and then 50sqft per additional person  (Do not count bathrooms and hallways)

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