Limits on the number of people living in a unit are very common and often depend on the number of bedrooms, bathrooms, and size of the units. However, before making a limit on the number of people living in a unit, a landlord should be aware that a low limit could make the landlord subject to a claim under the Fair Housing Act for discriminating against families.
The Fair Housing Act allows local governments to restrict the number of occupants in a rental unit as long as the reasonable occupancy limit does not discriminate against families and is applied uniformly without regard to who consists of a family. For example, a group of 5 people consisting of a mother, father, and three children must be treated the same as a group of five friends that act as a family.
However, the Fair Housing Act does not expressly allow a landlord to restrict the number of occupants in a unit. HUD takes complaints about occupancy standards seriously and will evaluate to determine whether a restriction discriminates against families.
The FHA has found that a 2 person per bedroom rule is reasonable; however, it has also found a one person per bedroom rule is discriminatory because it discriminates against single parents with children. Further, the FHA has found that 2 person occupancy for a 2 bedroom unit is discriminatory because a two bedroom could only house either a couple or a single parent or child but not a couple with children.
A common occupancy limit is 2 occupants per bedroom plus one occupant. For example, a one bedroom would be three people, a two bedroom would be five people, and a three bedroom would be seven people. Also, when creating an occupancy limit, it is important to note that a landlord cannot differentiate between adults and children. For example, a landlord is not able to say that a unit can have 2 adults and 2 children, but not 4 adults or only 3 adults and no children.
There have also been cases that allow a landlord to have a lower occupancy limit if there is a demonstrable relationship to a legitimate business interest. For example, if a two bedroom unit is smaller than a typical two bedroom unit.
Occupancy limits can be an important issue because it is important for landlords to have clear guidelines to who they will rent to and apply those rules uniformly for all tenants.
If a lease only allows a certain number of persons and is not discriminatory, a landlord can prohibit additional occupants from living in the unit. Under Los Angeles’ rent control ordinance, a landlord can raise the rent 10% per additional resident within 60 days of the landlord discovering the tenants or when a landlord should have discovered the additional residents. In areas without rent control, a landlord can serve a Three Day Notice to Perform Covenants or Quit to require a tenant to remove additional residents not on the lease.