Protective covenants governing the number and type of occupants per dwelling have been subject to much scrutiny over the years. This has a lot to do with the Federal Fair Housing Act (“FHA”), by which community associations are bound. When dealing with a potential overcrowding or occupancy issue, it is important to remember that the FHA prohibits many types of discrimination, including discrimination based on familial status.
Use restrictions on overcrowding and occupancy (i.e., the number and types of people that may live in a dwelling at any one time) have evolved over the past few decades. For example, in 1974, the U.S. Supreme Court in Village of Belle Terre v. Boraas , upheld the constitutionality of a zoning ordinance that limited the number of unrelated individuals who may inhabit a dwelling, but allowed for an unlimited number of individuals that were related by blood, marriage or adoption. As a result, many community associations across the country adopted similar occupancy restrictions in their governing documents.
In 1995, however, the U.S. Supreme Court in City of Edmonds v. Oxford House, Inc., found that occupancy restrictions allowing “unlimited related” persons and “limited unrelated” persons in a dwelling violated the FHA. Based on this decision, the prevailing standard throughout the community association industry evolved to simply limit the number of persons per bedroom per dwelling (regardless of relation). Unfortunately, however, an occupancy restriction of two persons per bedroom does not automatically mean that an association is in compliance with the FHA.
The Department of Housing and Urban Development (“HUD”), which is tasked with enforcing the FHA, adopted a policy in 1998 that stated occupancy requirements of two persons per bedroom are, as a general rule, reasonable. This policy, however, also went further in finding that such a requirement is not automatically in line with the FHA, meaning each occupancy requirement would have to be examined on a case by case basis. In other words, the “two persons per bedroom” restriction is not a bright line rule, and it is subject to challenge under the FHA, depending on the individual circumstances.
In reviewing certain “two person per bedroom” occupancy restrictions, HUD will take the following into account:
- the age of children;
- the configuration of the dwelling in question;
- other physical limitations of the housing (e.g., the capacity of the septic, sewer and other building systems); and
- whether the housing provider made discriminatory statements, adopted discriminatory rules regarding the use of the common facilities, took steps to discourage families with children from living in their community, or enforced its occupancy policies only against families with children.
As outlined HUD’s policy statement, for example, a prohibition against two parents and an infant living in a one bedroom dwelling may be treated differently under the FHA than a prohibition against two parents and an adolescent child living in a one bedroom dwelling.
The takeaway for community associations is that there is no clear rule for when it comes to occupancy restrictions. Although the “two persons per bedroom” may be, as a baseline, reasonable, if an occupant can show that the restriction is unreasonable as it applies to him or her specifically, he or she may be entitled to an accommodation under the FHA. So, when it comes to enforcing these restrictions, the individual facts and circumstances will play a major role in determining whether it is reasonable in a particular situation. This means boards and property managers should evaluate the facts of each scenario, and, when necessary, obtain legal advice to ensure compliance with the FHA.