When dealing with occupancy standards, it used to be easy. The traditional rule of “two heartbeats per bedroom” was perceived as the way to go. HUD published what was referred to as the Keating Memorandum back in the early 1990s which detailed this standard and it was considered generally reasonable.  Over the years, I successfully defended any number of cases based on the Keating Memorandum and the two person per bedroom guideline.  Many professional apartment management companies, including those I represent, adopted that standard. But that is not, of course, the end of the story.

Occupancy standards are useful because management has an absolute right to set reasonable, non-discriminatory limits as to how many people can live in a specific apartment. Yet management must be careful so as to not discriminate against a family with children. Those rational goals sometimes conflict.


Issues come up when a tenant gets pregnant and a family increases in size. Is it appropriate to ask a family to move to a larger unit? When is it appropriate to ask the family to move? What if the family cannot afford a larger unit? What if there are no larger units available? What if a family has twins? What should you ask an applicant about a pregnancy?


To be sure, the Keating Memorandum also made clear that there could be other factors which might change the analysis. Factors such as the size of the bedroom and the age of any children living in an apartment need to be taken into account. For example, if two bedrooms are large and/or if there is a spacious living area or study, a two person per bedroom standard might be unreasonably restrictive.


Additionally, some states (like California) and even cities (like Austin, Texas) have amended their laws such that in essence “two plus one per bedroom” is the new standard.


What should management do? First, check the law in your jurisdiction. If you don’t know where to find the standard, ask a lawyer. Then examine the size and configuration of your apartment units and develop a reasonable occupancy policy that does not unfairly discriminate against families with children. Again, if your bedrooms are large or there is additional living space, you may consider adding more than just two heartbeats per bedroom. 


Always be consistent in applying your occupancy standards. Management cannot make exceptions.


You cannot ask an applicant (or a current resident) about how many children they plan on having. You can certainly ask how many people will be living in the unit. When you ask, I recommend phrasing the question in terms of “people” as opposed to “children” so there will be less confusion about management’s intent. In my view, occupancy standards which limit the number of children per unit will be view more harshly than a standard which only refers to people living in a unit.


Management cannot discriminate against families with children. I have seen many discrimination cases based on familial status. They are never fun to defend against because any number of very cute children are involved. Setting reasonable standards – and informing applicants and residents of those standards – can help ensure that such a case never gets filed. 


Just A Thought.