Legal Question Section: Question from the Property Management Association’s newsletter and answered by Todd Kelting

What factors should managers consider when establishing occupancy requirements at their communities and what are the steps to correct overcrowding issues/violations? Occupancy requirements are necessary to minimize wear and tear and to limit utility consumption.  Fair housing laws generally govern the establishment of occupancy guidelines. The U.S. Department of Housing and Urban Development, as set forth in a 1991 memorandum drafted by Frank Keating, has vaguely, and not conclusively, provided that a standard of two persons per bedroom is not discriminatory.  With “two persons per bedroom is not discriminatory” as a guideline, Mr. Keating’s memorandum then identifies additional factors (bedroom and unit size, age of children, configuration of unit, etc.) that may alter the basic guideline in one direction or the other.  As a general rule, an occupancy guideline of no less than two persons per bedroom, in Maryland or Virginia, should be safe in most circumstances.  In the District of Columbia, when at least one person is a child, an occupancy guideline of no less than two persons per bedroom plus one is safe in most circumstances (for example, in a two-bedroom apartment, five persons would be the minimum occupancy standard). To correct occupancy issues, managers should be prepared to issue notices to correct the breach or to terminate the tenancy, as appropriate under the circumstances.  Proving that an apartment is over-occupied can be a challenging task in court, since tenants are quick to blame extra beds or unidentified individuals on temporary guests passing through.  The most reliable testimony (that an unauthorized individual is spending the night regularly) usually comes from overnight security staff.  Maintenance staff and other employees should be trained to look for and report additional beds and other indicators of unauthorized occupants.  Short of this, properties are often reliant upon the reluctant testimony from neighbors to prove that impermissible individuals are residing in an apartment community.