Question: What are the occupancy limitations for rental properties in California?

Answer: The federal rule of thumb is two occupants per bedroom plus one additional occupant, but special conditions and local housing standards may affect these occupancy limitations.

Landlords have the right to determine the number of occupants in their rental properties, providing they:

  • do not discriminate against families;
  • apply the limitations consistently to all tenants; and
  • conform to federal and state guidelines.

A landlord may wish to reduce wear and tear on their rental property by setting an occupancy limit, but they may not set an unreasonably low limit that violates the Fair Housing Act. The Fair Housing Act prohibits discrimination based on familial status, meaning whether a tenant has children. The threshold for what constitutes a reasonable limit is hazy, but landlords have many resources to look to for guidance.

The following criteria may affect the occupancy limit of your rental property.

Number and size of rooms

The U.S. Department of Housing and Urban Development (HUD) adopted a formula from the 1991 Keating Memorandum to determine how many people may live in a unit. Commonly known as the “two-plus-one” rule, this formula determines landlords need to allow at least two occupants per bedroom plus one additional occupant in a rental unit, regardless of their relationship. For example, two people may occupy a studio unit, three may occupy a one-bedroom unit, five may occupy a two-bedroom unit and so on.

California’s Department of Fair Employment and Housing (DFEH) has also adopted the “two-plus-one” formula. Note that this formula is only a guideline and not a hard-and-fast rule. There are other factors that may change your property’s occupancy limitation.

The size of a rental unit and its bedrooms may change how many people may live in it. Section 503.2 of the Uniform Housing Code clarifies that two people may occupy a minimum-sized unit, which consists of a room of at least 120 square feet with additional rooms adding at least 70 square feet. Such a unit needs to add at least 50 square feet for each additional occupant.

Some properties may have additional rooms like dens or studies that tenants may be able to use for sleeping as well. This accounts for the “plus-one” part of the “two-plus-one” formula. It allows for some flexibility by acknowledging that tenants may be able to use non-bedroom spaces for sleeping.

Property capacity

There are some exceptions to the “two-plus-one” formula. Landlords may be able to impose more restrictive occupancy policies based on the property’s capacity, such as sewer, septic system and parking limitations. For example, when a property’s septic system is not built to handle the amount of people prescribed by the “two-plus-one” formula, the landlord may be able to justify a more restrictive occupancy limit.

Age of occupants

The Fair Housing Act protects tenants with minor children. It prevents a landlord from evicting or forcing tenants to move to a larger unit on account of their children since doing so would have the effect of discriminating based on familial status. This protected class includes pregnant tenants and tenants gaining custody of a minor child. Landlords are also prohibited from imposing rules on children’s sleeping arrangements.

State and local laws

State and local governments may also change occupancy standards for health and safety reasons. This means landlords need to check with their municipality for local laws even when their occupancy limit satisfies the “two-plus-one” rule. These may include additional restrictions enforced by local authorities like fire departments.

In short, anything more restrictive than the “two-plus-one” rule could have the effect of discriminating against families with children. Only under special conditions may a landlord impose more restrictive occupancy limitations. HUD publishes separate guidelines for public and subsidized housing.

Since HUD opted not to impose binding enforcement codes, the reasonableness of any property’s occupancy limitations is reviewed on a case-by-case basis. The effect of such weak guidance is that landlords need to do their homework when setting occupancy limitations and not just rely on HUD’s basic formula.

Landlords, be sure to contact your local code enforcement agency and ask about regulations and ordinances affecting your rental property.

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