Moving Beyond Two-person-per-bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards

• Citation: Vol. 28 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 28 j n

Issue 3 Spring 2012

3-28-2013

Moving Beyond Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards

Tim Iglesias

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Recommended Citation

Iglesias, Tim (2011) "Moving Beyond Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards," Georgia State University Law Review: Vol. 28: Iss. 3, Article 11. Available at: http://digitalarchive.gsu.edu/gsulr/vol28/iss3/11

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MOVING BEYOND TWO-PERSON-PER-BEDROOM: REVITALIZING APPLICATION OF THE FEDERAL FAIR HOUSING ACT TO PRIVATE

RESIDENTIAL OCCUPANCY STANDARDS

Tim Iglesias*

What is crowded to some is exactly what is comfortable to others; what is comfortable to some is exactly what is lonely to others.¹

New empirical evidence demonstrates that the two-person-per-bedroom standard (a common residential occupancy policy) substantially limits the housing choices of many thousands of families, especially Latinos, Asians, and extended families nationwide. The federal Fair Housing Act makes overly restrictive policies illegal, but promotion of the standard by housing providers, confusion in the courts and the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-person-per-bedroom standard to become dominant with a false veneer of legality. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. And, if HUD fails to act, it encourages private plaintiffs to challenge the two-person-per-bedroom standard and provides guidance to courts in deciding these cases.

*Professor of Law, University of San Francisco School of Law. The following people provided helpful comments on earlier drafts of this article for which I am very grateful: Michael Allen, Chris Brancart, Anne Houghtaling, Richard Marcantonio, Rigel C. Oliveri, Mike Rawson, Robert Schwemm, Jodi Short and members of the USF School of Law faculty, especially Tristin Green and Josh Davis. Also special thanks to Rick Sander, Rich Hertz, Don Dixon, Sara Pratt and numerous practitioners including Mike Hanley and Matthew Dietz. I owe a great debt to the following USF law students who provided excellent research and other assistance for this article: Brandy Hillman-Azevedo, Kate Chatfield, Gwendolyn Harre, Christie Moore, and Peter O'Hare. Of course, any errors in this article are solely the responsibility of the author.

1. Ellen Pader, Housing Occupancy Standards: Inscribing Ethnicity and Family Relations on the Land, 19 J. Architectural Plan. Res. 300, 305 (2002).

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Introduction

621

I. Stuck in the Wrong Place: What's Wrong with the

Two-Person-Per-Bedroom Standard?...............................626

A. Background on the Federal Fair Housing Act and the Residential Occupancy Standard Problem.........................627

B. Critiques of the justifications for the two-person-per-bedroom standard...............................................................638

C. Empirical evidence demonstrates that the two-person-per-bedroom standard constitutes a prima facie case of discrimination in many housing contexts...........................645

II. The Origin and Entrenchment of Two-Person-Per-Bedroom as our National Standard: How We Got

Here and How We Got Stuck Here.....................................653

A. Two-Person-Per-Bedroom: Our National Standard?.......653

B. How the Two-Person-Per-Bedroom Became the Dominant National Occupancy Standard ..........................657

1. Landlords' Fear of Familial Status Liability...............658

2. HUD's Inclusion of the Two-Person-Per-Bedroom Standard in the Keating Memo.....................................660

3. The Use of the Two-Person-Per-Bedroom Standard

by HUD and FHAPs in Enforcement Activities...........664

4. HUD's and DOJ's Incorporation of the Standard in Proposed Orders and Consent Decrees.......................666

5. Mention of Two-Person-Per-Bedroom Standard

from the Keating Memo by Some Courts......................669

6. Promotion of Two-Person-Per-Bedroom By the

Rental Housing Industry...............................................670

C. Why We Have Been Stuck at the Two-Person-Per-Bedroom Standard..............................................................673

1. Lack of a Clear Liability Standard...............................673

2. The two-person-per-bedroom standard has become

a focal point..................................................................680

3. The Lack of Litigation Challenging Landlords Employing the Two-Person-Per-Bedroom Residential Occupancy Standard.................................683

III. Beyond the Two-Person-Per-Bedroom Standard:

A. The Scope of HUD's Current Regulatory Authority..........685

1. Clarifying Disparate Impact Analysis and Standards.. 690

Options for HUD, Plaintiffs, and Courts

684

B. HUD's Options

690

2012] PRIVATE RESIDENTIAL OCCUPANCY STANDARDS 621

2. Transforming the Keating Memo into a Liability Standard.......................................................................693

a. Governmental Occupancy Standards.....................698

b. Larger Bedrooms....................................................701

c. Additional Sleeping Areas......................................703

d. Other Physical Limitations of Housing..................704

e. Clarifying How the Test Should Be Applied...........705

f. Safe Harbor Requires Transparency.......................708

3. Creating Locally Compliant Residential Occupancy Standards ......................................................................709

4. Supplementing the Keating Memo with Additional Guidance ...................................................................... 711

5. Conducting Studies.......................................................712

C. Plaintiffs' Options in the Face of HUD Inaction...............713

D. Courts' Options in the Face of HUD Inaction..................715

Conclusion....................................................................................716

Appendix: A Sample Keating-Form Liability Standard:

The Three-Digit Residential Occupancy Standard........718

Introduction

A family living in a home will often contract and expand over time, depending on a variety of life circumstances. Children are born or added to the family by adoption or foster care. or parents may divorce and establish separate households between which their children split time.² Sometimes children sleep three to a room, or an uncle sleeps in the basement. A variety of financial and other considerations inform decisions about who is and how many people are considered members of the family's household and who sleeps in what room. At a time when families struggle to make ends meet, allowing them to choose their living arrangements seems particularly

2. Other possibilities include the following: Children move away, but may want to return home after college. A divorced person with children may move back home. Someone with children from a prior marriage may remarry and establish a "blended household." Elderly people may want to live with their children or extended relatives, either to care for others or to receive care themselves.

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important.³ Even apart from economic concerns, many extended and intergenerational families desire to live together in one household.⁴

Families living in single family owner-occupied housing often "double up," but are rarely subject to enforcement of city housing codes. In contrast, renters are regularly subject to occupancy policies created and enforced by landlords and property management agencies. Many (perhaps most) landlords in the United States impose a maximum two-person-per-bedroom occupancy rule,⁵ which often prevents families who want to live together from doing so. owners of nicer housing in higher-end neighborhoods and property management agencies managing large numbers of units regularly impose this limitation.⁶ Progressive housing advocates have argued for years that the bright line two-person-per-bedroom standard harms families of all kinds, particularly families of color.⁷ However, landlords and landlord advocates have dug in, defending the two-person-per-

3. Landlords sometimes refer to these practices as "doubling up." "Census Bureau data released in September showed that the number of multifamily households jumped 11.7 percent from 2008 to 2010, reaching 15.5 million, or 13.2 percent of all households. it is the highest proportion since at least 1968, accounting for 54 million people." Michael Lou, 'Doubling Up' in Recession-Strained Quarters, N.Y. Times, Dec. 28, 2010, at A1. "[T]he number of people in multigenerational households grew by 2.6 million between 2007 and 2008." Jennifer Ludden, Boomerang Kids Drive Rise of Extended Family Living, NPR.ORG, http://www.npr.org/templates/story/story.php?storyld=124787436 (Mar. 18, 2010).

4. Dozens of posts on blogs and community forums requesting information and advice on this issue attest to its importance in the daily lives of renters. See, e.g., How Many People Can Live in a 3 Bedroom House in Columbus[,] Ohio?, GoFTP Answers, http://www.goftp.com/qna/How_many_people_can_live_in_a_3_bedroom_house_in_columbus_ohio-qna324803.html (last visited Jan. 20, 2011). Interestingly, the city of Ames, Iowa attempts to make it easy for families who want to live under one roof to determine the city's regulations. See Occupancy Laws for...