The issue of occupancy limits and restrictions in rental housing is a continually vexing one. Sometimes what one person thinks is too many is, in the eyes of another, not enough. And sometimes what seems enough to one may seem too much to another. Further compounding matters is the fact that different jurisdictions may employ different standards. Moreover, the standards may be applied differently in different situations.
In 1986 the Los Angeles, California, City Council adopted an ordinance limiting the number of people who could occupy a rental unit. The Los Angeles Times reported that, according to the ordinance, "70 square feet of sleeping space would be required for two persons and another 50 square feet for each additional person. City officials calculate that this formula would permit up to 10 people in a moderate-sized two bedroom apartment." This formula can be found in section 503(b) of the Uniform Housing Code. Additionally that code requires that a dwelling unit have at least one room that is at least 120 square feet in size.
The ordinance was passed after "months of debate" during which "proponents steadfastly argued that as many as two dozen people have been crammed into small, two-bedroom apartments throughout the city." So it was probably needed. Be that as it may, the state of California also adopted the Uniform Housing Code requirements and it still adheres to them.
It is important to note that an ordinance such as the one adopted by Los Angeles establishes a formula for determining a maximum allowable number of inhabitants. It doesn’t require that landlords accept a maximum number. Individual landlords, as well as jurisdictions, are free to set more restrictive standards.
On more than a few occasions, though, limitations on the number of occupants allowed has been seen as a way of discriminating against families with children. Doing that violates Fair Housing law. You can limit the number of people in your rental unit, but you can’t say, for example, "I will take three adults, but not a couple with a six-year old."
There is no hard-and-fast rule as to what, for purposes of fair housing laws, is an allowable occupancy limit. Probably the best known "rule of thumb" is the "Keating Memo", issued by HUD’s General Counsel, Frank Keating, in 1991, and later adopted by HUD as noticed in the Federal Register, Dec. 22, 1998. In that memo, Mr. Keating wrote, "Specifically, the Department believes that an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act." But, it was noted, a number of factors could justify deviating from that general rule. The size of the bedrooms, the ages of children, and configuration of the unit could all be relevant.
"For example," Mr. Keating wrote, "if a mobile home is advertised as a ‘two-bedroom’ home, but one bedroom is extremely small, depending on all the facts, it could be reasonable for the park manager to limit occupancy of the home to two people."
In 1998 the California Department of Fair Employment and Housing adopted a guideline that slightly expanded the Keating formula by saying that they would be disinclined to investigate cases unless the occupancy limits were more restrictive than 2 persons per bedroom plus one. The "plus one" acknowledges, as does the Uniform Housing Code, that most dwellings are so configured that it would be reasonable for at least one person to use some non-bedroom space (e.g. a loft, den, or living room) as a sleeping area.
Although the "2+1" guideline has never been formally adopted by legislation or state regulation, it has become widely used and referred to. Nevertheless, landlords should remember that, unless a local jurisdiction has adopted it, it has no legal status and cannot be depended upon as a safe harbor.
The safest guideline, then, is probably this: If you are going to have an occupancy limit, it should be based on the number of people allowed, and it should not limit, or mention, the number of children.