Last fall, the California Department of Fair Employment and Housing (DFEH) resolved a familial status fair housing case that I wanted to highlight. Familial status, of course, is the protected class which covers families with children under the various federal, state, and local fair housing laws. This discrimination complaint asserted that an apartment management company rejected a California family of 12 a chance to rent a 2,583 square foot home because the family had “too many kids.”

Defending against the claim, the management company noted it followed the “two plus one” occupancy standard – which means two persons per bedroom, plus one additional person in the home. Based on the facts here (a family of twelve), that would appear to require at least a four (if not a five or a six bedroom home). The DFEH typically follows the federal guidelines for home occupancy. While the U.S. Department of Housing & Urban Development (HUD) issued guidance back in 1992 confirming that two persons per bedroom would generally be considered reasonable, the guidelines since then have changed. While some states formally adopted a “two plus one” standard, the modern rule is simply that enforcement of occupancy standards depends on what is reasonable for the specific home at issue – which further depends on the size and configuration of the unit (including the number of bedrooms, the size of the bedrooms, the total living space, if there are any physical limitations in the home, the ages of the children, and other relevant factors).

As a part of the settlement, the management company agreed to revise its policies, commit to annual fair housing training as well as submit to quarterly inspections. Curiously, the press release noting the resolution did not include a financial component. Obviously, it is a rare application which comes from a family of 12.  And not many rental units can fit a family of 12.  But I suspect that was part of the reason the DFEH took the case.

The takeaway here: do not out of hand reject an application for housing because it looks like there may be “too many kids” or simply conclude that your company follows the old 1992 HUD guidance. Management companies need to perform a review to determine what is a reasonable number of occupants given the size of the home (use the total living space) – and not just the raw number of bedrooms. Or you may need to speak with a lawyer like me.

Just A Thought.