The Paletz Law Blog

Residential Occupancy Limits & Fair Housing

John M. Mione, the Firm’s Director of Operations and Senior Attorney was published in this month’s e-News for the Real Property Law Section of the State Bar of Michigan. In the article, he examines the vanishing of the “Two Heartbeats Per Bedroom” rule and how fair housing laws are impacting residential occupancy limits.

Allegations of discrimination often arise out of residential occupancy limits. In the 1990s, the Department of Housing and Urban Development (HUD) established a guideline commonly known as the “Two Heartbeats Per Bedroom” rule. Under this rule, landlords could reasonably limit the number of persons in a rental unit based on the number of bedrooms without fear of violating the Fair Housing Act (42 USC 3601, et seq.).

HUD has since revised its standards to what is now known as the “2 plus 1” rule, which allows tenants to have at least three occupants per bedroom. Therefore, it may now be considered familial status discrimination to limit the number of occupants based on the prior standard. However, if there is an underlying building code in the respective municipality that limits the number of occupants, a landlord needs to be mindful of that as well.

Additionally, case law is not consistent. For example, in Department of Civil Rights ex rel Smith v. Countryside Townhouses (Mich App No. 327176, October 11, 2016, unpublished), the landlord’s policy allowed only two adults (defined as 18+) per unit. The Michigan Civil Rights Commission found it to be discriminatory based on age, which is prohibited for housing purposes under the Michigan Elliott-Larsen Civil Rights Act. MCL 37.2102(1). On appeal, the circuit court ruled that the policy was not discriminatory, reasoning that it is permissible to differentiate between adults and children in housing. The Court of Appeals agreed, finding that since adults and children are not similarly situated, the treatment of the two could be different.

Regardless of the outcome, landlords should still be aware that although it may not be age discrimination, a comparable situation could still be deemed discriminatory based on familial status.