Landlord's limit on number of occupants may be fair housing violation

Question: I own a few homes that I rent out. A couple and their 6-year-old son live in one of my two-bedroom homes. Things have been working out great; they are good tenants and have always paid rent on time. However, I just found out that the couple are expecting twin girls.

I think that five people in a two-bedroom home are too many, and I am uncomfortable with the idea of the little boy sharing a room with the baby girls. I want to terminate their tenancy, but I'm worried that it will be difficult because I know they want to stay in the home.

What are my rights and options here?

Answer: A landlord who imposes an unreasonably restrictive limit on the number of people occupying an apartment can violate the fair housing laws.

Maximum occupancy standards are a complex but important topic in fair housing law, and a difficult area for providing black-and-white answers.

An unreasonable restriction on the number of occupants can have the effect of discriminating against families with children. What constitutes a reasonable limitation, though, depends on a variety of considerations, including the local building codes, the square footage of the unit, sewage system limitations, the ages of the occupants and other similar considerations.

As a general guide, and only as a general guide, consider applying the "2+1" rule. Under the rule, a limit on the number of occupants is probably permissible if it allows two people per bedroom plus one additional occupant. In this case, that would mean that a reasonable limit is five people in the two-bedroom home.

Under this general rule, placing your occupancy limit at four could be interpreted as overly restrictive, and as a result could be viewed as having a discriminatory effect on families with children.

However, if the apartment is extremely small or on a septic system that cannot tolerate five occupants, your occupancy limitation of four people might be more reasonable. On the other hand, under some circumstances the 2+1 rule might even be considered too limiting.

For example, if all the children in the rental unit are very young, and the living room and other rooms are larger in size, more occupants in the home than 2+1 could be allowed.

Since we do not know all the relevant details about your rental other than the number of occupants, your effort to restrict occupancy to fewer than five people, particularly when three of the five are very young children, raises some red flags and might receive close scrutiny by a fair housing agency.

Also, an occupancy limit cannot be imposed just because you are uncomfortable with the idea that boys and girls would be sharing a bedroom.

A family's decision as to what kind of room-sharing arrangements are appropriate for their children is none of the landlord's business.

We strongly recommend that you contact a fair housing agency for confidential counseling on these issues before you take any action. You can also call Project Sentinel at (888) 324-7468 or email us at

Van Deursen is director of Dispute Resolution Programs for Project Sentinel, a Bay Area nonprofit. Send questions to


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