Can a Chicago landlord put a cap or a limit on the number of renters who can occupy a rental apartment? Maybe… but, if the landlord does not do it right, the landlord could be jumping into hot water. In general, a landlord can set an occupancy limit, however, the landlord must be careful to craft an occupancy policy that does not violate any fair housing laws.
Wait a minute, it is the landlord’s property after all. Can’t a landlord set a maximum occupancy limit of the landlord’s own choosing? Doesn’t the landlord have free reign over setting the rules with regard to who can and who can not occupy a rental property? Nope, not really. My readers are smart enough to know that landlords in Chicago are not the kings of their castle. The answer, like most landlord-tenant law answers, is complex and requires landlords to make an examination of and comply with the fair housing laws.
In Chicago, we are lucky to have not one, not two, not three, but four different fair housing laws! Most Chicago landlords are governed by the Federal Fair Housing Act, the Illinois Human Rights Act, the Cook County Human Rights Ordinance, and the Chicago Fair Housing Ordinance. All four laws prohibit covered landlords from discriminating against any prospective tenants or actual tenants based upon “familial status” (and a number of other protected classes).
The fact is that some landlords adopt maximum occupancy rules as a way to to discriminate against prospective tenants based upon familial status. There are landlords out there who just don’t want young children (babies) or old children (teens) or any children (large families) in their units. There are other landlords who don’t want single women or unmarried couples in their units. Landlords who develop occupancy limits with an eye toward excluding these protected classes are usually unlawfully discriminating based upon familial status.
“Familial status” was added to the Federal Fair Housing Act as a “protected class” in 1988. Familial status is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individual or individuals; or the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.” Familial status is broad and grants protections to people who are married or unmarried, pregnant or seeking to adopt a child, and who have foster, natural, or adopted children. (There is usually an exception from the Housing for Older Persons Act of 1995 that carves out an exception from familial status discrimination for certain “senior citizen housing”.)
The general policy adopted by the Department of Housing and Urban Development is that landlords can set maximum occupancy restrictions and standards as long as those restrictions do not violate the fair housing laws. HUD also recognizes that local governments may set occupancy restrictions for safety purposes.
In a nutshell then, a Chicago landlord can adopt a policy that imposes a realistic limit on the maximum number of renters who can occupy a rental unit provided that the landlord is not in violation of any of the fair housing laws. At all times, the landlord is prohibited from using an occupancy policy to discriminate against any protected class. Obviously then, there is a fine line between violating the fair housing laws based upon familial status (or some other prohibited discrimination) and setting reasonable occupancy limits. So, where can a landlord look for guidance? How does this work in practice?
First, many municipalities have their own occupancy standards. The standards set in Chicago by the building code are quite high. Other municipalities may vary. Landlords should check with their local authorities to determine the maximum lawful occupancy for their rental units. A landlord would never face a challenge for setting an occupancy limit equal to the occupancy limit allowed by a governmental entity.
Second, landlords can look to the rules on HUD enforcement of fair housing rules. In 1991, the general counsel for HUD penned what is known as the “Keating Memo“. The memo was an attempt to embody HUD’s policies for enforcement of the fair housing laws in relation to occupancy standards. Keating indicated that a general rule of two individual occupants per bedroom would usually be considered reasonable. However, the memo dictates that the general rule was a rebuttable presumption and was not a guaranteed safe harbor. HUD investigators would still look closely at other factors to determine if an occupancy policy was reasonable. Some of those factors are the size and number of bedrooms and the unit, the ages of children or occupants, the configuration of the rental unit, the physical limitations of the apartment, any state and local occupancy laws, and any other factors deemed relevant. (Clear as mud, right?) In 1998, Congress passed a law requiring HUD to officially adopt the Keating policies as HUD policies.
So, can a landlord just say “two individuals per bedroom”? The law seems to say… maybe. It really depends on those other factors (is the bedroom really big? are there enough bathrooms? is the rest of the unit big enough?, etc. Many fair housing advocates concede that a formula that usually results in a reasonable occupancy restriction is the “two plus one” formula. A landlord applying the formula would multiply the number of bedrooms in the rental unit times two and add one to determine a maximum number of individuals whop can occupy the rental unit. The Chicago landlord setting an occupancy policy has the unenviable task of making a determination that is reasonable, documenting it, and then applying that policy uniformly.