Prohibition of Occupancy Standards that Exclude Children

1. The Fair Housing Act prohibits housing providers from discriminating on the basis of familial status, making it illegal to discriminate against families because of the presence of children.

   2. Owners may neither exclude families with children from their properties, nor may they develop policies or procedures that have the purpose or effect of prohibiting children (e.g., policies in tenant selection plan, occupancy standards and house rules).

   3. Owners may not exclude otherwise eligible elderly families with children from elderly properties or elderly/disabled properties covered by this handbook.

• E. General Occupancy Standards

  1. Owners have discretion in developing occupancy policies that meet the needs of the specific property. HUD does not prescribe specific policies owners must implement but provides guidelines owners must follow when developing written occupancy standards.

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2. HUD’s occupancy guidelines are provided in Exhibit 3-2. Generally a two-persons-per-bedroom standard is acceptable. An owner may establish a different standard for assigning unit size based on specific characteristics of the property (e.g., some bedrooms are too small for two persons).

3. An owner’s occupancy standards establish the size of the unit a family will occupy, but owners must avoid making social judgments on a family’s sleeping arrangement. For example, it is not for the owner to determine whether an unmarried couple may share the same bedroom or whether a young child can share a bedroom with a parent.

4. Owners may consider the size of the unit, the size of the bedrooms, and the number of bedrooms so long as their policy allows for family preferences (within HUD guidelines) to be considered. As owners develop and implement occupancy standards, they must take into consideration the following factors:

   • a. The number of persons in the family;

   • b. The age, sex and relationship of family members;

   • c. The family's need for a larger unit as a reasonable accommodation; and

   • d. Balancing the need to avoid overcrowding with the need to avoid underutilization of the space and unnecessary subsidy.

5. If a family, based on the number of members, would qualify for more than one unit size, the owner must allow the family to choose which unit size they prefer.

6. Counting family members. In order to determine the size of unit that would be appropriate for a particular family, the owner needs to determine the number of family members.

   • a. The owner must count all full-time members of the family.

   • b. The owner must also count all anticipated children. Anticipated children include the following:

     • (1) Children expected to be born to a pregnant woman;

     • (2) Children in the process of being adopted by an adult family member;

     • (3) Children whose custody is being obtained by an adult family member;

     • (4) Foster children who will reside in the unit;

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• (5) Children who are temporarily in a foster home who will return to the family; and

• (6) Children in joint custody arrangements who are present in the household 50% or more of the time.

• c. The owner may count children who are away at school and who live at home during recesses.

NOTE : Owners should not count children who are away at school who have established residency at another address or location as evidenced by a lease agreement. The new address or location is considered the student’s principle place of residence.

• d. The owner must count live-in aides for purposes of determining appropriate unit size.

• e. The owner may establish reasonable standards for counting family members that are temporarily in a correctional facility. For example, it is reasonable for an owner to count a teenager who will return to the family in six months from a detention center. It is not reasonable to count an adult member who may return to the family in two years following incarceration.

• f. The owner must not count nonfamily members, such as adult children on active military duty, permanently institutionalized family members, or visitors.

• g. The owner must count foster adults living in the unit.