LANDLORDS - Chapter 8, Limiting The Number of Tenants

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How many people can live here?
How many people can live here?

by Steven A. Hall

Disclaimer:

This article is intended to be a general discussion only, and should not be considered legal or real estate advice. Your use of it does not create either an attorney-client or broker-client relationship. Any liability that might arise from your use or reliance on this article, or any of its links, is expressly disclaimed. This blog is not legal, real estate, loan, accounting or tax advice, and is not to be acted on as such, it was outdated the moment it was written, and is subject to change without notice. If you are dealing with a potential problem with your investment property you are advised to retain the appropriate licensed professional. This article is not meant to apply to a rent controlled area in which special rules may apply.

 

INTRODUCTION

As you read this article keep in mind that it was written for the owners of property located in the State of California. This is critically important because state statutes, case law, and public policies can vary widely from state to state.

If you are an absentee owner who has decided to manage your own property it’s best you thoroughly familiarize yourself with the territory. This serialized blog is an attempt to identify at least some of the potentially serious issues faced by an inexperienced owner.

 

LIMITING THE NUMBER OF TENANTS

Recall from previous chapters that generally a landlord may not place minimum age requirement on prospective tenants (Government Code Section 12955(b)). There are, of course, exceptions to this rule. For Example, retirement communities can impose minimum age requirements.

Although a landlord may not discriminate on the basis of the familial relationship between the prospective tenants he can, however, ask the number of people who will be living in the unit. The purpose for asking this information is to prevent overcrowding of rental units. The question then becomes, what is a reasonable restriction on the number of tenants to be permitted?

In this regard, California has adopted the requirements of the Uniform Housing Code Section 503(b). Basically, a rental unit must have at least one room that is a minimum of 120 square feet. Rooms used for living must have at least 70 square feet and any room used for sleeping must be larger than the minimum by 50 square feet for every person in excess of two. This suggests that a bedroom must be at least 120 square feet to support a maximum of three people and 170 square feet to support maximum of four people.

Bear in mind that section 503 states maximum, not minimum standards. On March 20, 1991, HUD’s General Counsel Frank Keating issued a memorandum which articulated HUD’s position on occupancy restrictions. Keating states, "Specifically the Department believes that an occupancy policy of two persons per bedroom, as a general rule, is reasonable under the Fair Housing Act."

The Keating memo also made it clear that factors other than just the size and number of bedrooms might affect the number of persons who can reasonably occupy a rental unit. For example, if the unit has a den which can be used as a bedroom, then arguably the unit will support more tenants. Some of the relevant factors considered by HUD might be size of the bedrooms, the size of the overall premises, and the configuration of the unit.

In December of 1998, HUD issued a statement confirming its adoption of the standards set forth in the Keating Memo. The Keating discussion and subsequent HUD endorsement may be the genesis of the "two person per bedroom plus one additional occupant" guideline. Under this rule of thumb, which is generally followed in California, a 1 bedroom unit may be restricted to three people and a two bedroom unit to 5 people. Again, even the two plus one rule is not a fixed standard.

Remember if a landlord would rent to maximum of four people based on the unit size and the number and size of the bedrooms, then that landlord must also rent to a family of four.

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