Fair Housing and Occupancy

“Occupancy” policies refer to requirements that limit the number of people allowed to live in a residential space.

City government, landlords, and tenants all have reason to seek reasonable limits on the number of people that live in a space. Often, occupancy limits are put into place by government agencies to protect tenants from health and safety concerns related to overcrowding. Landlords may wish to limit the number of occupants in order to reduce the burden on the property maintenance, utilities, or parking. Some housing providers may violate tenants’ health or safety by placing too many renters into a space to increase the rent income. Occupancy policies, when reasonably implemented, can benefit living conditions and protect tenants’ rights.

However, overly restrictive occupancy requirements may violate tenants’ rights and the law. In expensive and competitive rental markets like Austin, tenants can increase their affordable housing options when they are allowed to make their own decisions about how many people they share a space with. Additionally, unreasonable or unequally applied occupancy limits can have a discriminatory effect on families. 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 Acts. Imposing an unreasonable occupancy limit is one way of saying to a couple or single parent with children, or a pregnant woman, that they are not welcome there.

In Austin, housing is currently subject to the following limits on the number of people that can live in a housing unit:

  • City land use code allows no more than 6 unrelated adults per dwelling. The Austin Land Use Code restricts the number of unrelated residents who can occupy a dwelling together. This limit does not apply to households comprised of family members. This is sometimes referred to as Austin’s “stealth dorm” ordinance. (City Code Section 25-5-511)
  • City property maintenance code allows two or more adults per bedroom, depending on square footage. The International Property Code, on which City Code relies, states “a bedroom occupied by more than two adults must contain at least 120 square feet, plus an additional 50 square feet for each adult in excess of three.” The City Property Maintenance Code places no restriction on children under 18 years old. A bedroom can be defined as a traditional sleeping room, but can also include certain living spaces if they meet minimum standards regarding square footage, ventilation, exits, etc. (Austin amendments to International Property Code)
  • State law allows no more than three times the number of adult tenants as there are bedrooms. For example, under state law, the maximum number of adults permitted in a three–bedroom dwelling is nine. A landlord may allow an exception if an adult whose occupancy causes a violation is seeking temporary shelter from family violence for a period that does not exceed one month.  The State law does not restrict the number of children in addition to the number of adults. The State law also does not require that the adults be distributed three per bedroom; rather, the total number of bedrooms is used to calculate the total number of adults. (Texas Property Code Section 92.010)
  • Federal guidance indicates that two people per bedroom is reasonable as a general rule, but that the specific circumstances must be taken into account. HUD’s Keating Memorandum 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. including: size of the bedrooms and unit; age of the children; configuration of the unit; physical limitations of the housing; state or local government occupancy standards; and other relevant factors. When these other factors are considered, two people per bedroom may be unreasonably restrictive. (Fair housing advocates generally assert that children under the age of two years of age cannot  be counted as a person in determining occupancy.)

These various codes, statutes, and guidance were passed by different governing bodies, at different times, and for different intents. As a result, under some circumstances they conflict.

If you have additional questions about the specifics of your circumstance, or if you believe you have been discriminated against in housing, contact the Austin Tenants Council at 512-474-7006.

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.