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The Department of Housing and Urban Development (HUD)  acknowledged that its 1991 standards of occupancy of two persons per bedroom has been the source of a great deal of confusion and misinterpretation. As a result, HUD issued an interim standard of occupancy.

HUD announced that it "will not pursue challenges to occupancy standards that are as broad as those provided by the Building officials and Code Administrators (BOCA) guidelines." According to HUD, compliance with the BOCA code occupancy standard will provide a safe harbor for property owners and managers. That code provides  occupancy guidance based on the square footage of a housing unit and various portions of such units rather than on such generalities as bedroom configuration.

Considerably more objective than the 1991 guidelines, the BOCA standards provide maximum occupancy criteria which, according to HUD, "allow reasonable occupancy by families with children, as well as extended families and others. "

The BOCA Code provisions outline, "Every dwelling unit must contain a minimum gross floor area not less than 150 square feet for the first occupant and 100 square feet for each additional occupant. Every room occupied for sleeping purposes by one occupant shall contain at least 70 square feet of floor area and every room occupied for sleeping purposes by more than one person shall contain at least 50 square feet of floor area for each occupant." The code, therefore, in certain situations allows for non-traditional sleeping areas such, as living and dining rooms.

Rental housing groups were disappointed and discouraged with HUD's interim guidance since the 2-person per bedroom standard is generally accepted as the most sensible throughout the industry and reflects standards which allow residential units to be properly operated and maintained.

HUD FINALLY ISSUED OCCUPANCY POLICY

In December, 1998, HUD released a statement of policy of the factors it will use when evaluating a housing provider's occupancy policies to determine whether discriminatory conduct is occurring against families with children. This is a policy ....not a rule or law.

HUD has recommended a guideline of two persons per bedroom as a safe policy for providers. For policies which are more restrictive, HUD will take into account such factors as the size of the bedrooms and dwelling unit, capacity of sewer, septic and other building systems, and any city or state occupancy requirements governing the property to determine if discrimination against families with children is occurring.

If a rented property is governed by state or local government occupancy requirements, and the landlord's occupancy policies reflect those requirements, HUD would consider the governmental requirements as a special circumstance tending to indicate that the landlord's occupancy policies are reasonable. Many municipalities have adopted the BOCA Code provisions based on the minimum gross floor area so the circle appears complete.

An occupancy policy which limits the number of people per unit is more likely to be considered reasonable than one which limits the number of children.

In addition, any discriminatory statements or rules against children or families, as well as other steps to discourage families with children from living in the housing will be reviewed.

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