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Tim Iglesias

Excerpted from: Tim Iglesias, Moving Beyond Two-person-per-bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards , 28 Georgia State University Law Review 619 (Spring, 2012)(366 Footnotes)


What is crowded to some is exactly what is comfortable to others; what is comfortable to some is exactly what is lonely to others.

A family living in a home will often contract and expand over time, depending on a variety of life circumstances. Children are born or added to the family by adoption or foster care. Or parents may divorce and establish separate households between which their children split time. Sometimes children sleep three to a room, or an uncle sleeps in the basement. A variety of financial and other considerations inform decisions about who is and how many people are considered members of the family's household and who sleeps in what room. At a time when families struggle to make ends meet, allowing them to choose their living arrangements seems particularly important. Even apart from economic concerns, many extended and intergenerational families desire to live together in one household.

Families living in single family owner-occupied housing often double up, but are rarely subject to enforcement of city housing codes. In contrast, renters are regularly subject to occupancy policies created and enforced by landlords and property management agencies. Many (perhaps most) landlords in the United States impose a maximum two-person-per-bedroom occupancy rule, which often prevents families who want to live together from doing so. Owners of nicer housing in higher-end neighborhoods and property management agencies managing large numbers of units regularly impose this limitation. Progressive housing advocates have argued for years that the bright line two-person-per-bedroom standard harms families of all kinds, particularly families of color. However, landlords and landlord advocates have dug in, defending the two-person-per-bedroom standard, citing their need for a clear rule and concerns about overcrowding.

Upon close examination, justifications for the two-person-per-bedroom occupancy standard are weak. Moreover, new empirical studies demonstrate that application of a two-person-per-bedroom standard predictably results in prima facie discrimination against families in violation of the Federal Fair Housing Amendments Act (FHAA) in many housing markets. In the case of studio apartments, this standard discriminates in 44 states, and it discriminates as applied to one-bedroom apartments in every state except North Dakota. Studio and one-bedroom apartments account for approximately 32% of all rental apartment units, and almost 50% of rental apartment units in larger buildings. Latino and Asian families in every state suffer the greatest discriminatory effects of this standard because they tend to live in larger family groups.

Despite its widespread discriminatory effects, however, the two-person-per-bedroom standard is widely perceived as the legallycompliant standard in most of the country. Landlords and property management companies strongly prefer this traditional occupancy standard. And, the U.S. Department of Housing and Urban Development (HUD)--the agency charged with enforcing the Fair Housing Act--inadvertently aids and abets this perception of legality through the use of the two-person-per-bedroom standard as part of its occupancy enforcement policy contained in the Keating Memo. The Keating Memo provides that the two-person-per-bedroom standard is presumptively reasonable and articulates a multi-factor analysis to determine if any residential occupancy standard may violate the FHAA. Under that policy, HUD usually refrains from investigating when landlords impose a two-person-per-bedroom limit. This practice lends an unjustified quasi-legal veneer to the two-person-per-bedroom standard. In the end, the under-enforcement of the FHAA in this area hurts many thousands of families nationwide that Congress intended to protect.

The application of the Fair Housing Act to private residential occupancy standards is an area ripe for examination. Not only has the dominant status of the two-person-per-bedroom standard remained largely under cover, but until now no one has demonstrated its frequent discriminatory effects on families. This Article makes these two contributions. It exposes the two-person-per-bedroom standard as the dominant standard with a false aura of legal legitimacy, and it challenges the standard as an unfair and often illegal restriction on the housing choices of families protected by the FHAA. These findings pose an important and difficult problem for HUD as the nation's primary enforcer of the FHAA. HUD Secretary Shaun Donovan has recently emphasized that HUD has renewed its focus on research, data, and evidence-based Based upon this commitment and the combination of this Article's empirical evidence and argument, the Article encourages HUD to use its regulatory authority to move the country to a less restrictive standard and articulates several reasonable alternatives for HUD to consider. This Article also seeks to enable private fair housing litigants to challenge the two-person-per-bedroom policy in appropriate cases, and it offers courts guidance for deciding these cases.

This issue is particularly important now because the current mortgage and foreclosure housing crises have worsened our chronic affordable housing crisis. Plus, the expected increase in Latino and Asian households--whose larger families tend to be disproportionately excluded by the two-person-per-bedroom standard--makes proper enforcement of the FHAA an even more important issue for the future.

This Article is organized in three parts. Part I introduces the FHAA and the problem of restrictive residential occupancy standards. It then critiques justifications proffered for the two-person-per-bedroom standard and presents substantial original empirical evidence demonstrating that the two-person-per-bedroom standard is discriminatory as applied in a wide range of housing contexts and jurisdictions nationwide. It argues that the two-person-per-bedroom standard should not be considered presumptively compliant with the FHAA but rather should more properly be considered presumptively discriminatory. Landlords want and need a residential occupancy standard that can be easily applied and that provides assurance that the landlord is acting within the bounds of the law. However, the two-person-per-bedroom standard is not the appropriate standard. This conclusion sets the stage for a deeper investigation of how we got where we are and proposals for a new solution.

Part II takes a step back and explains how the two-person-per-bedroom rule became a dominant residential occupancy standard. It argues that the two-person-per-bedroom standard has become dominant not because it is a good standard or the right standard, but because of a lack of a clear liability standard, landlord advocacy, and dysfunctions in FHAA enforcement.

Drawing upon previous cases and the insights incorporated into HUD's existing enforcement guideline, Part III proposes innovative ways for HUD to better enforce the antidiscrimination goal of the FHAA by moving private housing providers to a less restrictive residential occupancy standard that also treats landlords fairly and reasonably. Moreover, it makes clear that HUD has the power to effect important social change without overstepping its bounds. In addition, Part III urges private fair housing enforcement and offers guidance to assist courts in case HUD fails to act.

. Professor of Law, University of San Francisco School of Law.