Landlord Tenant Q&A with LAURENE H. YOUNG
LAURENE H. YOUNG, (B), MPM, RMP, REALTOR
Young Hawaii Homes, Inc.
2011 President, Oahu Chapter
National Association of Residential Property Managers
Q. A couple with two young children inquired about a one bedroom unit that I had for rent. They said that several people told them they couldn’t rent to them because they only allow two people per bedroom. This couple can’t afford a two bedroom unit. I’m reluctant to rent to them but, if I do, can I charge them a little more rent?
A. As has been emphasized in many previous articles, the Fair Housing Act prohibits discrimination based on race, color, religion, national origin, sex, disability and familial status (Hawaii includes age, sexual orientation, marital status, gender identity expression and HIV status). Any landlord who uses the two person per bedroom guide as an excuse not to rent to families is opening themselves up to claims of discrimination. The two person per bedroom standard is just a guide, and not a rule or law.
While Hawaii public housing providers generally start with the two persons per bedroom guideline, you should be very careful in using this standard in private housing. The size and number of bedrooms and overall size and configuration of the dwelling should be considered. A large bedroom may be able to accommodate more than 2 people and other rooms, such as the living room or study, could be used as sleeping areas. The capacity of the septic, sewer or other building systems, the age of the children, state and local laws and other relevant factors could also be considered. If you denied renting a unit with one average size sleeping area to two adults with two small children, you would be more likely to have a discrimination problem than if you denied that same rental to 2 adults with teenagers.
This does not mean that the landlord has to rent a one bedroom unit to a couple with a dozen children. In that situation, you could use occupancy standards to deny renting to that many people, even if they are the children of one couple. You would base it on square footage of the sleeping areas, which could include the living and dining areas.
The City of County of Honolulu Housing Code Section 27-4.3(b) states that “Every dwelling unit and congregate residence shall have at least one room for living purposes which shall have not less than 120 square feet of floor area. Other habitable rooms except kitchens shall have a floor 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.” The housing code is based on maximum allowances for health and safety reasons but, as you can see, you could still fit quite a few people in a unit.
Your occupancy policy should allow somewhere between two persons per bedroom and the maximum allowed under the housing code. In any discrimination suit, HUD (the US Department of Housing and Urban Development) will also consider any discriminatory statements or rules against families with children that discourage them from living in the unit. Using a little common sense and being reasonable and consistent will help to minimize your exposure to discrimination allegations. It is important to remember that there are no national, state or city occupancy standards and, in any discrimination complaint, the courts will decide if a violation of the Fair Housing Act occurred.
As for charging additional for the children, again be very careful. The water/sewer bill is a problem for many landlords since it has risen so much in the past few years. If the rent includes utilities and your policy is to charge a certain amount for additional tenants (over a fixed number) to cover the inevitable increase in the utilities, and you do so for all your units, you would be able to charge that amount, even if the additional tenants are children. Keep track of the utility consumption before and after your tenants move in to be sure that your costs actually went up, so you have some basis for these charges. You cannot charge an additional fee to cover wear and tear to the unit because you think the children may cause more damage to the unit. If you have any questions you should contact an attorney.