Major Changes Proposed to Occupancy Regulations in California

The California Department of Fair Employment and Housing (DFEH) Council is considering adopting occupancy standards that would far exceed the standards set in the U.S. Department of Housing and Urban Development’s (HUD) “Keating Memo,” the guidance from which most occupancy policies are generally derived. The proposal would bar a property owner from refusing to rent to no less than 15 people in a three-bedroom unit, nine people in a two-bedroom unit and six people in a one-bedroom unit.
 
The proposed regulations require owners to consider the entire livable space of the unit as they adopt and implement occupancy standards for their communities. According to the regulations as drafted, reasonable occupancy would be based on square footage calculations of the “habitable rooms” in the unit. “Habitable room” is defined as “any room other than a kitchen, bathroom, toilet room, closet, hall, storage or utility space."
 
The proposal also notes that “upon addition of a new child to a residence, through birth or adoption, where this addition places the residents in violation of the applicable occupancy standards, there shall be an exception made to the occupancy standard outlined above.”
 
Named for Frank Keating, HUD’s General Counsel at the time, the Keating Memo is an industry standard, affirming that it is reasonable for rental housing providers to adopt a two-persons-per- bedroom policy with some limited exceptions. For example, an owner’s policy should allow for two parents with an infant child in a one-bedroom apartment. Also, according to the memo, owners should take into account the size and configuration of the unit as they craft their policies. Keating notes that a den or study might change the number of occupants considered reasonable in an apartment unit.
 
The DFEH Council’s proposal would be a drastic deviation from the standard set in the Keating Memo. NAA’s California affiliates submitted comments to the DFEH Council in opposition to the proposed regulations and are working to stop them from being adopted. The Council plans to act on its proposal sometime next year.