"The Fair Housing Act Rules
If your association is considering limiting the number of occupants in its units, you must first understand the Fair Housing Act. "The Fair Housing Act makes it unlawful to discriminate on the basis of familial status, meaning whether there are children 18 and under residing at the property," explains ***** *****, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. "Unless you're in a 55-and-over or 62-and-over-qualified association, you have to make sure you're not violating restrictions against discrimination on the basis of familial status."
The key is reasonability—you have to have a reasonable basis for implementing any occupancy rule. "Clearly, if an association is imposing occupancy restrictions as a way to prohibit having families, that's a mistake," says Donna DiMaggio Berger, managing partner at Katzman Garfinkel in Ft. Lauderdale, Fla., who represents community associations. "If your community is mostly older people, but it's not a 55-and-over- or 62-and-over-qualified association and you state that no more than three people will be allowed to live in a two-bedroom unit, what's the reasonable basis for that rule? It might just be a veiled attempt to keep out families. On the other hand, restricting residency to two occupants per bedroom isn't so unreasonable."
Knowing What's Reasonable
What are valid reasonable bases for imposing occupancy restrictions? "You can state that you're restricting the number of residents based on securing the property or safety issues," says Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. "So you can say, 'We believe that in a one-bedroom unit, there can't be 10 residents because of the strain on the community and the safety issues implicated in having so many people in one unit.'"
The most defensible restrictions are those tied to the number of bedrooms or square footage of each unit, explains Berger. "If it's an 800-square-foot unit with two bedrooms, you can make an argument that you have a reasonable basis to say no to six residents," she says. "It's a fire hazard, a drain on common resources, or something similar."
In other words, though you can't impose a rule banning families with more than four children, you can probably achieve the same goal by stating that there can be no more than two residents per bedroom. So in a one-bedroom unit, the total number of residents could be two. In a three-bedroom unit, the total number of residents would be six." https://www.hoaleader.com/public/342.cfm