landlord/tenant Q&A

LAURENE H. YOUNG, (B) MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers

Q. I received an application for a family with 2 adults, their 3 adult children and 6 minor children for a 3-bedroom home. Can I reject their application because I think that is too many people?

A. This is an often asked question that is a source of confusion to many landlords. I understand your concern that there will be a lot more wear and tear on your unit with this many people, but you also want to avoid any claims against you for discrimination based on familial status (the presence of children living with a parent or legal custodian). In any familial status discrimination suit, the courts will consider any discriminatory statements, policies or rules that discourage or prevent families from living in the unit together.

In rentals, the Fair Housing Act prohibits discrimination based on race, color, religion, ancestry, sex, disability and familial status (Hawaii extends this protection to prohibit discrimination based on age, sexual orientation, marital status, gender identity expression and HIV status). The US Department of Housing and Urban Development (HUD) is responsible for implementation and enforcement of the Act’s requirements. In 1991, HUD’s General Counsel, Frank Keating, issued internal guidelines to consider when determining if a discriminatory act was committed against families with children. He stated that an occupancy policy of two persons per bedroom was reasonable under the Fair Housing Act (although this is not a rule or law). Tenant advocates claimed that this guideline disproportionately excluded families with children. To landlords concerned about discrimination, HUD stated that compliance with the Building Officials and Code Administrators (BOCA) guidelines would provide safe harbor for them to avoid claims of discrimination based on familial status. The BOCA guidelines are based on square footage and allows for non-traditional sleeping areas such as living and dining rooms. In effect however, this guide suggested habitability levels that could have produced crowding.

The Federal Uniform Housing Code Section 503(b) and the City of County of Honolulu Housing Code Section 27-4.3(b) states that “Every dwelling unit and congregate residence shall have at least one room for living purposes which shall have not less than 120 square feet of floor area. Other habitable rooms except kitchens shall have a floor area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two.” The housing code is based on maximum allowances for health and safety reasons but acknowledges that small children and infants can share their parent’s beds. As you can see, under these habitability guidelines you could still fit quite a few people in your normal sized 3-bedroom unit.

In December 1998, HUD published notice that they would use Keating’s 1991 memo as policy with regards to complaints of discrimination on the basis of familial status involving occupancy standards. Keating’s memo listed some of the factors that would be used to determine if a discriminatory act was committed based on familial status. However, the memo stressed the totality of the circumstances and whether the policy was unreasonably restrictive would be deciding factors when evaluating a claim of discrimination. While Hawaii public housing providers generally start with the two persons per bedroom guideline, you should be very careful in using this standard in private housing. The size and number of bedrooms and overall size and configuration of the dwelling would be considered when determining if your policy was reasonable. A large bedroom may be able to accommodate more than 2 people and other rooms, such as a den or study, could be used as sleeping areas. The capacity of the septic, sewer or other building systems, the age of the children (if you denied renting a studio unit to 2 adults with an infant, you would be more likely to have a discrimination problem than if you denied that same rental to 2 adults with a teenager), state and local laws and other relevant factors would also be considered.

When turning down prospective tenants, your rental criteria should be based on non-discriminatory measurements like credit score, employment history or monthly income requirements. Run a credit report for all the adults applying for this rental. If you are concerned about any tenant not taking care of your unit, you might change your policy and perhaps only sign 6 month leases for all your tenants and do walk throughs of your units after 5-6 months to make sure your unit is being properly taken care of. If you find that these tenants, despite having so many people, keep the unit in good and clean condition, pay the rent on time and do not cause any problems, sign a rental renewal with them. If they are not properly caring for your unit or cause any other problems, you can tell them that you will not be renewing their lease at the end of the term; you do not have to give them a reason for your non-renewal. Be sure you are consistent with how you treat every tenant and that your non-renewals are based on a non-discriminatory reason.

It is important to remember that there are no national, state or city occupancy rules or limits and, in any discrimination complaint, the courts will decide if a violation of the Fair Housing Act occurred. If you have any questions you should contact an attorney.