Restricting density is important because overcrowding strains an association's parking, drives up utility costs, overloads recreational facilities, disrupts the quiet enjoyment of residents, and depresses property values. A reasonable restriction upon the occupancy of condominium units is within the authority of an association. (Ritchey v. Villa Nueva.) Restrictions can be imposed provided they are not discriminatory.
Discrimination. The Federal Fair Housing Act prohibits restrictions on occupancy which discriminate on the basis of race, color, religion, national origin, sex, familial status or handicap. In particular, occupancy restrictions cannot be an excuse to discriminate against families with children. The Department Housing and Urban Development (HUD) has stated that, in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit. (Fair Housing Occupancy Standards.)
Two Plus One Formula. While opposed to discrimination, California's Department of Fair Employment and Housing (DFEH) has allowed restrictions using a "two-plus-one" formula, i.e., two persons per bedroom plus one additional person for the household. For example, a 1-bedroom unit could have 3 people, a 2-bedroom could have 5 persons, and so on. The formula is based on a 1998 adoption of the "Keating Memo" by the U.S. Department of Housing and Urban Development. It creates a presumption that 2 + 1 is reasonable but is subject to rebuttal based on factors such as:
- the size of each bedroom,
- the size and configuration of the residence,
- other physical limitations such as the capacity of the building systems,
- the age of the children, and state and local laws
Other Formulas. The Uniform Housing Code and California's Health & Safety Code both restrict the number of persons in a unit, using a formula based on bedroom square footage. In addition, many cities and counties will issue their own housing occupancy standards.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.