Fair Housing and Occupancy

A landlord may set reasonable occupancy restrictions for residential property as long as the restrictions are applied consistently and do not have a discriminatory effect on families with children. Familial status, meaning the presence of children under the age of 18 or a pregnant female, is one of the protected classes under the federal and state Fair Housing Act. Imposing an unreasonable occupancy limit is one way of saying to a couple or single parent with children that they are not welcome there.

What is reasonable?
The Texas Property Code Section 92.010 states that the maximum number of adults that a landlord may allow to occupy a dwelling is three times the number of bedrooms in the dwelling. A City of Austin ordinance states that no more than six unrelated people may live in a residence. The actual number of residents is determined by the type of residence and the location; please see the ordinance for more detail. n addition, City of Austin has a minimum square footage requirement for each person living in a residence.

The Uniform Housing Code states:

"Dwelling units and congregate residences shall have at least one room which shall have not less than 120 square feet of floor area. Other habitable rooms, except kitchens, shall have an area of not less than 70 square feet. Where more than two persons occupy a room used for sleeping purposes, the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two."

What is reasonable for families?

HUD’s guidance on occupancy standards states that “an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act.” However, HUD also states that other factors may be considered to determine what is a reasonable occupancy policy. Such factors include:

When these other factors are considered, two people per bedroom may be unreasonably restrictive.

What are the protected classes?
Federal and Texas laws prohibit discrimination based on the following protected classes:

For Austin residents, additional protections include marital status, sexual orientation, gender identity, age, and status as a student.

What happens if someone violates the Fair Housing Act?
The Fair Housing Act is enforced by a variety of means and organizations. Violators may face an administrative complaint or a civil lawsuit in which damages may be sought.

Resources

The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.

Austin Tenants’ Council • 1640-B East 2nd Street • Austin, TX 78702 • 512.474.7006