landlord/tenant Q&A

Q. If a landlord receives an application for an otherwise qualified family of 9 related people, are there city, state or federal limits as to the extent to which the landlord can legally reject the prospective tenant based on the number of people in the family in relation to the size of the rental unit? What are those limits and which, if any, has greater jurisdiction over the other, city, state or federal law?

A. This is an often asked question that is a source of confusion to many landlords and I can’t give you a definite answer as there is a lot of gray area on this subject. (Note: There are different rules for unrelated people, as discussed in a previous column.)

In regards to rentals, 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). The U.S. Department of Housing and Urban Development (HUD) is responsible for implementation and enforcement of the Act’s requirements. In 1991, HUD’s General Counsel, Frank Keating, issued internal guidelines to consider when determining if a discriminatory act was committed, particularly against families with children. He stated that an occupancy policy of two persons per bedroom, generally and subject to other criteria, was reasonable under the Fair Housing Act (this is not a rule or law). Tenant advocates claimed that this standard disproportionately excluded families with children. HUD then stated that compliance with the Building Officials and Code Administrators (BOCA) guidelines would provide safe harbor for landlords to avoid claims of discrimination based on familial status. It is based on square footage and allows for non-traditional sleeping areas such as living and dining rooms. HUD’s intent was to prevent discrimination based on family size. In effect, however, this guide mandated habitability levels that could have produced overcrowding. In December 1998, HUD published notice that they would use Keating’s 1991 memo as policy with regards to complaints of discrimination on the basis of familial status involving occupancy standards.

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.

Keating’s memo listed some of the factors that would be used to determine if a discriminatory act was committed based on familial status. While Hawaii public housing providers generally start with the two persons per bedroom guideline, you should be very careful in using this standard. The size and number of bedrooms and overall size and configuration of the dwelling would be considered. A large bedroom may be able to accommodate more than 2 people and other rooms, such as a den or study, could be used as sleeping areas. The capacity of the septic, sewer or other building systems, the age of the children (if you denied renting a unit with one average sized sleeping area to 2 adults with an infant, you would be more likely to have a discrimination problem than if you denied that same rental to 2 adults with a teenager), state and local laws and other relevant factors would also be considered.

The number of people you can or should allow in the unit is somewhere between two persons per bedroom and the housing code with its maximum allowances. In any discrimination suit, HUD 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 standards in any discrimination complaint – the courts will decide if a violation of the Fair Housing Act occurred.

Answers to questions in Landlord Tenant Q&A are provided by members of the Oahu Chapter of the National Association of Residential Property Managers (NARPM), an organization that supports the professional and ethical practices of rental home management through networking, education, and certification. The Oahu Chapter, founded in 2004, has become the largest in the nation with 175 registered members.

Disclaimer: The answers provided in this column by Realtors address individual cases and should not be construed as interpretations of the law. For specific information on Hawaii State Law, go to http:// hawaii.gov/ dcca/areas /ocp/ landlord_tenant or contact an attorney.

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