How Many is too Many? Limits on Unit Occupancy Explained

Recently a small apartment adjacent to me leased quite quickly. The three adult guys introduced themselves. All nice. But it seemed a tight fit for a one-bedroom apartment of about 500 square feet. Why would three men rent an apartment that small? And, how many people can a landlord pack into a small place? The answer is not as straightforward as one might think.

‘Family’ is Not About Relations but Function

The landlord doesn’t have much leeway to screen-out a multi-person household that is not a traditional family arrangement. The “housekeeping unit,” as it is known in case law, is increasingly composed of single adult households. It is not the nuclear family of yesterday. Moreover, shared-custody arrangements mean children may be present in the home only part of the time.

As the social concept of ‘family’ has evolved, so has the nature of ‘family’ (always a social construct) and that has presented a challenge to long-established housing laws.

A principal challenge came four decades ago when City of Santa Barbara tried to legislate the definition of family to include only “persons related by blood, marriage or legal adoption living together.” That city wanted to exclude non-traditional households “inharmonious with or injurious to the preservation of a residential environment,” according to the law text. The ultimate goal: “to develop and sustain a suitable environment for family life….” A conservative approach to family as construct.

The California Supreme Court found that the city’s legislated definition of family violated the state’s constitutional guarantee of individual privacy, however. The court said:

We are not persuaded by facts presented here…. In general, zoning ordinances are much less suspect when they focus on the use than when they command inquiry into who are the users… We do not here address the question, How many people should be allowed to live in one house? […] We merely hold invalid the distinction effected by the ordinance between (1) an individual or two or more persons related by blood, marriage, or adoption, and (2) groups of more than five other persons” (City of Santa Barbara v. Adamson, 1980).

“As long as a group bears the generic character of a family unit as a relatively permanent household,” the court continued, “it should be equally as entitled to occupy a single family dwelling as its biologically related neighbors.” The ruling had the effect of allowing the regulation of certain aspects of household like size but not character.

City of Beverly Hills respects the ruling by defining the ‘housekeeping unit’ as a “traditional family or the functional equivalent” where:

if the unit is rented or leased, all adult members jointly agree to occupy and be responsible for the entire premises of the dwelling unit under a single written rental agreement or lease and the make up of the household occupying the unit is determined by the residents of the unit rather than the landlord or property manager. -- BHMC §10-3-100

How Many is Too Many?

From time to time Renters Alliance gets a call about noise from upstairs or a neighbor and sometimes that includes a question about occupancy: how many people can legally live there? For example, is three adults too many in a small 1-bedroom place?

There is generally no limit in local ordinance when it comes to most households in rental housing. Except in one narrow instance: Chapter 5 rent stabilization allows the landlord to evict “if the tenant is using or permitting an apartment unit to be used for an illegal purpose.” According to the section on illegal uses (4-5-505), the occupancy of 4 people or more in a 1-bedroom apartment smaller than 1,200 square feet would be prohibited; for a studio it is 3 persons. These apply only to a Chapter 5 tenancy. My neighbors are OK under city law.

The federal Housing Code specifies minimums, not maximums. Federal law prescribes a minimum floor area for a 2-person dwelling and incrementally increases the minimum for dwellings suitable for more inhabitants, but this is a baseline related to health and safety. A landlord can’t pack people into a tin-can of an apartment like sardines.

State law in Californai does impose some limits on household size. California’s Department of Fair Employment and Housing (DFEH) has established a policy for regulating occupancy, which is known as the “two plus one” formula. It’s a simple standard: two people can occupy each bedroom with one additional person in the living space. So three people may occupy a 1-bedroom apartment and five in a 2-bedroom apartment. It’s a state standard rather than a hard-coded (legislative) cap on occupancy.

A Balancing of the Interests

The state standard addresses two sides of the same coin: it prevents overcrowding while also disallowing discrimination based on household size. For example, a landlord may prefer single-occupant households because they are quiet. But he cannot eliminate a larger housekeeping unit from consideration for a 1-bedroom, say, simply because it is three people, or because includes children.

The landlord must consider all rental applicants so long as the number of occupants meets the “two plus one” formula. But it’s a standard that allows for reasonable accommodation. So a landlord could probably not prevent a couple bringing in a 2nd or even a third child into that 1-bedroom. (The federal Fair Housing Act actually bars landlords from excluding households with children generally.)

How Does the Occupancy Standard Work in Practice?

The practical limitation on housekeeping unit size comes during screening.  Landlords probably do practice ‘soft’ discrimination in leasing, where the size or characteristics of the prospective tenant household emerge in discussion.

Also the lease likely establishes how many occupants may be allowed in the unit once it is leased. For example, only the named tenant may legally occupy it. Though the tenant can ask for an additional tenant to come on the lease, it is up to the landlord’s discretion. But that tenant has a strong argument to bring in a child under a reasonable accommodation. But not a roommate or an extended house guest.

On the other side of the coin, the landlord may rent to the maximum number of occupants in order to gain the highest rent, say. Putting three roommates in a 1-bedroom may be more remunerative. A 3-bedroom apartment may be rented to 7 persons — a way to defray that $5k asking rent.

My three adult neighbors get a pass for their small 1-BR apartment because the law and state standard says so. In the eyes of the authorities three ain’t a crowd.