[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Notices]
[Pages 70256-70257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33568]
[[Page 70255]]
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Part IV
Department of Housing and Urban Development
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Fair Housing Enforcement--Occupancy Standards Statement of Policy;
Notice
Federal Register / Vol. 63, No. 243 / Friday, December 18, 1998 /
Notices
[[Page 70256]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-4405-N-01]
Fair Housing Enforcement--Occupancy Standards Notice of Statement
of Policy
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Notice of statement of policy.
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SUMMARY: This statement of policy advises the public of the factors
that HUD will consider when evaluating a housing provider's occupancy
policies to determine whether actions under the provider's policies may
constitute discriminatory conduct under the Fair Housing Act on the
basis of familial status (the presence of children in a family).
Publication of this notice meets the requirements of the Quality
Housing and Work Responsibility Act of 1998.
DATES: Effective date: December 18, 1998.
FOR FURTHER INFORMATION CONTACT:
Sara Pratt, Director, Office of Investigations, Office of Fair Housing
and Equal Opportunity, Room 5204, 451 Seventh Street, SW, Washington,
DC 20410, telephone (202) 708-2290 (not a toll-free number). For
hearing- and speech-impaired persons, this telephone number may be
accessed via TTY (text telephone) by calling the Federal Information
Relay Service at 1-800-877-8339 (toll-free).
SUPPLEMENTARY INFORMATION:
Statutory and Regulatory Background
Section 589 of the Quality Housing and Work Responsibility Act of
1998 (Pub. L. 105-276, 112 Stat. 2461, approved October 21, 1998,
``QHWRA'') requires HUD to publish a notice in the Federal Register
that advises the public of the occupancy standards that HUD uses for
enforcement purposes under the Fair Housing Act (42 U.S.C. 3601-3619).
Section 589 requires HUD to publish this notice within 60 days of
enactment of the QHWRA, and states that the notice will be effective
upon publication. Specifically, section 589 states, in relevant part,
that:
[T]he specific and unmodified standards provided in the March
20, 1991, Memorandum from the General Counsel of [HUD] to all
Regional Counsel shall be the policy of [HUD] with respect to
complaints of discrimination under the Fair Housing Act . . . on the
basis of familial status which involve an occupancy standard
established by a housing provider.
The Fair Housing Act prohibits discrimination in any aspect of the
sale, rental, financing or advertising of dwellings on the basis of
race, color, religion, national origin, sex or familial status (the
presence of children in the family). The Fair Housing Act also provides
that nothing in the Act ``limits the applicability of any reasonable
local, State or Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling.'' The Fair Housing Act gave
HUD responsibility for implementation and enforcement of the Act's
requirements. The Fair Housing Act authorizes HUD to receive complaints
alleging discrimination in violation of the Act, to investigate these
complaints, and to engage in efforts to resolve informally matters
raised in the complaint. In cases where the complaint is not resolved,
the Fair Housing Act authorizes HUD to make a determination of whether
or not there is reasonable cause to believe that discrimination has
occurred. HUD's regulations, implementing the Fair Housing Act (42
U.S.C. 3614) are found in 24 CFR part 100.
In 1991, HUD's General Counsel, Frank Keating, determined that some
confusion existed because of the absence of more detailed guidance
regarding what occupancy restrictions are reasonable under the Act. To
address this confusion, General Counsel Keating issued internal
guidance to HUD Regional Counsel on factors that they should consider
when examining complaints filed with HUD under the Fair Housing Act, to
determine whether or not there is reasonable cause to believe
discrimination has occurred.
This Notice
Through this notice HUD implements section 589 of the QHWRA by
adopting as its policy on occupancy standards, for purposes of
enforcement actions under the Fair Housing Act, the standards provided
in the Memorandum of General Counsel Frank Keating to Regional Counsel
dated March 20, 1991, attached as Appendix A.
Authority: 42 U.S.C. 3535(d), 112 Stat. 2461.
Dated: December 14, 1998.
Eva M. Plaza,
Assistant Secretary for Fair Housing and Equal Opportunity.
Appendix A.
March 20, 1991.
MEMORANDUM FOR: All Regional Counsel
FROM: Frank Keating, G
SUBJECT: Fair Housing Enforcement Policy: Occupancy Cases
On February 21, 1991, I issued a memorandum designed to
facilitate your review of cases involving occupancy policies under
the Fair Housing Act. The memorandum was based on my review of a
significant number of such cases and was intended to constitute
internal guidance to be used by Regional Counsel in reviewing cases
involving occupancy restrictions. It was not intended to create a
definitive test for whether a landlord or manager would be liable in
a particular case, nor was it intended to establish occupancy
policies or requirements for any particular type of housing.
However, in discussions within the Department, and with the
Department of Justice and the public, it is clear that the February
21 memorandum has resulted in a significant misunderstanding of the
Department's position on the question of occupancy policies which
would be reasonable under the Fair Housing Act. In this respect,
many people mistakenly viewed the February 21 memorandum as
indicating that the Department was establishing an occupancy policy
which it would consider reasonable in any fair housing case, rather
than providing guidance to Regional Counsel on the evaluation of
evidence in familial status cases which involve the use of an
occupancy policy adopted by a housing provider.
For example, there is a HUD Handbook provision regarding the
size of the unit needed for public housing tenants. See Handbook
7465.1 REV-2, Public Housing Occupancy Handbook: Admission, revised
section 5-1 (issued February 12, 1991). While that Handbook
provision states that HUD does not specify the number of persons who
may live in public housing units of various sizes, it provides
guidance about the factors public housing agencies may consider in
establishing reasonable occupancy policies. Neither this memorandum
nor the memorandum of February 21, 1991 overrides the guidance that
Handbook provides about program requirements.
As you know, assuring Fair Housing for all is one of Secretary
Kemp's top priorities. Prompt and vigorous enforcement of all the
provisions of the Fair Housing Act, including the protections in the
Act for families with children, is a critical responsibility of mine
and every person in the Office of General Counsel. I expect
Headquarters and Regional Office staff to continue their vigilant
efforts to proceed to formal enforcement in all cases in which there
is reasonable cause to believe that a discriminatory housing
practice under the Act has occurred or is about to occur. This is
particularly important in cases where occupancy restrictions are
used to exclude families with children or to unreasonably limit the
ability of families with children to obtain housing.
In order to assure that the Department's position in the area of
occupancy policies is fully understood, I believe that it is
imperative to articulate more fully the Department's position on
reasonable occupancy policies and to describe the approach that the
Department takes in its review of occupancy cases.
Specifically, the Department believes that an occupancy policy
of two persons in a bedroom, as a general rule, is reasonable under
the Fair Housing Act. The Department of Justice has advised us that
this is the
[[Page 70257]]
general policy it has incorporated in consent decrees and proposed
orders, and such a general policy also is consistent with the
guidance provided to housing providers in the HUD handbook
referenced above. However, the reasonableness of any occupancy
policy is rebuttable, and neither the February 21 memorandum nor
this memorandum implies that the Department will determine
compliance with the Fair Housing Act based solely on the number of
people permitted in each bedroom. Indeed, as we stated in the final
rule implementing the Fair Housing Amendments Act of 1988, the
Department's position is as follows:
[T]here is nothing in the legislative history which indicates
any intent on the part of Congress to provide for the development of
a national occupancy code. * * *
On the other hand, there is no basis to conclude that Congress
intended that an owner or manager of dwellings would be unable to
restrict the number of occupants who could reside in a dwelling.
Thus, the Department believes 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. In this regard, it must be noted that, in connection with a
complaint alleging discrimination on the basis of familial status,
the Department will carefully examine any such nongovernmental
restriction to determine whether it operates unreasonably to limit
or exclude families with children.
24 C.F.R. Chapter I, Subchapter A. Appendix I at 566-67 (1990).
Thus, in reviewing occupancy cases, HUD will consider the size
and number of bedrooms and other special circumstances. The
following principles and hypothetical examples should assist you in
determining whether the size of the bedrooms or special
circumstances would make an occupancy policy unreasonable.
Size of bedrooms and unit
Consider two theoretical situations in which a housing provider
refused to permit a family of five to rent a two-bedroom dwelling
based on a ``two people per bedroom'' policy. In the first, the
complainants are a family of five who applied to rent an apartment
with two large bedrooms and spacious living areas. In the second,
the complainants are a family of five who applied to rent a mobile
home space on which they planned to live in a small two-bedroom
mobile home. Depending on the other facts, issuance of a charge
might be warranted in the first situation, but not in the second.
The size of the bedrooms also can be a factor suggesting that a
determination of no reasonable cause is appropriate. For example, if
a mobile home is advertised as a ``two-bedroom'' home, but one
bedroom is extremely small, depending on all the facts, it could be
reasonable for the park manager to limit occupancy of the home of
two people.
Age of children
The following hypotheticals involving two housing providers who
refused to permit three people to share a bedroom illustrate this
principle. In the first, the complainants are two adult parents who
applied to rent a one-bedroom apartment with their infant child, and
both the bedroom and the apartment were large. In the second, the
complainants are a family of two adult parents and one teenager who
applied to rent a one-bedroom apartment. Depending on the other
facts, issuance of a charge might be warranted in the first
hypothetical, but not in the second.
Configuration of unit
The following imaginary situations illustrate special
circumstances involving unit configuration. Two condominium
associations each reject a purchase by a family of two adults and
three children based on a rule limiting sales to buyers who satisfy
a ``two people per bedroom'' occupancy policy. The first association
manages a building in which the family of the five sought to
purchase a unit consisting of two bedrooms plus a den or study. The
second manages a building in which the family of five sought to
purchase a two-bedroom unit which did not have a study or den.
Depending on the other facts, a charge might be warranted in the
first situation, but not in the second.
Other physical limitations of housing
In addition to physical considerations such as the size of each
bedroom and the overall size and configuration of the dwelling, the
Department will consider limiting factors identified by housing
providers, such as the capacity of the septic, sewer, or other
building systems.
State and local law
If a dwelling is governed by State or local governmental
occupancy requirements, and the housing provider's occupancy
policies reflect those requirements, HUD would consider the
governmental requirements as a special circumstance tending to
indicate that the housing provider's occupancy policies are
reasonable.
Other relevant factors
Other relevant factors supporting a reasonable cause
recommendation based on the conclusion that the occupancy policies
are pretextual would include evidence that the housing provider has:
(1) made discriminatory statements; (2) adopted discriminatory rules
governing the use of common facilities; (3) taken other steps to
discourage families with children from living in its housing; or (4)
enforced its occupancy policies only against families with children.
For example, the fact that a development was previously marketed as
an ``adults only'' development would militate in favor of issuing a
charge. This is an especially strong factor if there is other
evidence suggesting that the occupancy policies are a pretext for
excluding families with children.
An occupancy policy which limits the number of children per unit
is less likely to be reasonable than one which limits the number of
people per unit.
Special circumstances also may be found where the housing
provider limits the total number of dwellings he or she is willing
to rent to families with children. For example, assume a landlord
owns a building of two-bedroom units, in which a policy of four
people per unit is reasonable. If the landlord adopts a four person
per unit policy, but refuses to rent to a family of two adults and
two children because twenty of the thirty units already are occupied
by families with children, a reasonable cause recommendation would
be warranted.
If your review of the evidence indicates that these or other
special circumstances are present, making application of a ``two
people per bedroom'' policy unreasonably restrictive, you should
prepare a reasonable cause determination. The Executive Summary
should explain the special circumstances which support your
recommendation.
[FR Doc. 98-33568 Filed 12-17-98; 8:45 am]
BILLING CODE 4210-28-M