Some governing documents contain language that limit the number of people that can live in a unit.  For example, the declaration may say something lie “no more than two persons can live in a one bedroom unit” or “no more than four persons can live in a two bedroom unit.”  The question is…..are these provisions legal and enforceable?

Both the Federal and The Florida Fair Housing Act prohibit discrimination in housing based upon “familial status.”  What constitutes discrimination is largely determined by rules promulgated by the Department of Housing and Urban Development. “HUD”

I researched whether forcing a family of three into a two bedroom unit can possibly be classified as discrimination based upon familial status.  In HUD’s 1998 Statement of Policy, this is what they wrote:

The following hypotheticals involving two housing providers who refuse to permit three people to share a bedroom.   In the first hypothetical, the complainants are two adult parents who applied to rent a one bedroom apartment with their infant child and both the bedroom and the apartment were large. 

In the second hypothetical, the complainants are a family of two adult parents and one teenager who applied to rent a one bedroom apartment.  Depending on other facts, issuance of a charge of discrimination based on “familial status” might be warranted in the first hypothetical, but not in the second. 

Here is some Case law:

Under the age-of-children factor, HUD has indicated that it might not be reasonable to include infant children in the calculation of the occupancy standard.  Crossroads Residents Organized for Stable and Secure Residences v. MSP Crossroads Apartments LLC.  U.S. District Court, Minnesota, 2016.

Prospective tenants who were married and had five minor children established prima facie case of familial status discrimination under Fair Housing Act (FHA) based on disparate impact resulting from landlord’s occupancy policy which set maximum number of tenants for unit as number of bedrooms plus one.  Snyder v. Barry Realty, 53 F. Supp 217, United States District Court, N.D. Illinois, Eastern Division. December 12, 1996)

Landlord’s rule requiring minimum of 170 square feet of bedroom space for a family of three, had disparate impact on families with children in violation of FHA and Rhode Island law.    Rhode Island Commission For Human Rights, v. Graul 120 F.Supp.3d 110, U.S. District Court, Rhode Island.

In United States v. Badgett, 976 F.2d 1176, 1180 (8th Cir.1992) a policy requiring single occupancy of one bedroom apartments was disapproved as a violation of the prohibition against familial status discrimination. Similarly in Fair Housing Council of Orange County v. Ayres, 855 F.Supp. 315 (C.D.Cal.1994) that court disapproved an occupancy policy limiting two-bedroom apartments to two persons. Defendants’ “one person per bedroom plus one” standard incorporates the same policy which was disapproved in Badgett and Ayres.

The essence of familial association is sharing living accommodations. An occupancy standard which forbids family members from sharing a bedroom is presumptively discriminatory on the basis of familial status unless the defendants can prove through objective evidence a business necessity sufficiently compelling to justify the challenged practice. See Betsy v. Turtle Creek Assn., 736 F.2d 963, 988 (4th Cir.1984).

All I know is that I grew up in a two bedroom – one bathroom apartment in Brooklyn.  There were six of us.  My parents and four kids.  Besides a lot of banging on the bathroom door, we turned out alright.  Sure, it was a tight squeeze, and my parents slept for years in the living room,  I would give anything to relive just one more of those nights.