Determining the Number of Residents in a Rental Unit
One of the most common questions asked of the RPOA staff is how to determine the number of residents your rental unit can legally accommodate. Well, the answer to this question is somewhat complicated and varies depending on which community the rental unit is located in Michigan.
Federal and State Guidelines
The United States Department of Housing and Urban Development (HUD) publishes a guideline that is somewhat useful for determining the number of residents you should allow to live in a single rental unit. The guideline says that, typically, you should use the “2 per bedroom plus 1 additional person” guideline. For example, if you have a one bedroom apartment, you should set the limit to three people. You’re probably asking yourself: How could all those people sleep in a one bedroom unit? Well, consider the couch/day bed/crib in the living room/den/office as an optional sleeping area or simply a crib in the bedroom where the parents are sleeping.
This rule has more to do with avoiding discrimination on the basis of “familial” status than anything. BUT, be aware, if the tenant is using a Section 8 voucher, HUD has recently ordered that local Section 8 administrators should use the “2 heartbeats per bedroom” restriction. In other words, no more than two people per bedroom. This has seriously limited some voucher recipient options. Where a one bedroom was sufficient prior to the new restriction, a two bedroom would now be required for the same size family.
In addition, HUD explains that other factors can be taken into account when determining the total allowable number of residents within a single unit. For example, the unit’s ability to sustain a large group of people with the existing water services. This could further limit—at the landlord’s discretion—the total allowable number of occupants. Landlords should be careful using such limitations as fair housing complaints could ratchet up.
Warning! Don’t be too quick to carve these guidelines into your granite book of rules. There are many other factors that may change the number that you “must” allow or not allow to live in a rental unit—some Federal or State, some local.
Federal and State (and most local) fair housing laws also state that you may not discriminate against families. Meaning: A landlord cannot refuse to rent to families simply because the landlord does not want to rent to families with children. Be careful when setting occupancy limits to avoid the perception of discrimination against families. A house with very large bedrooms may be able to accommodate more people. However, local occupancy restrictions under local ordinances such as property maintenance codes or zoning codes may further restrict the number of occupants allowed within a unit.
Rules May Differ by Community
Many communities have ordinances that restrict the number of residents based upon the size of the unit, the size and number of bedrooms and the relationships of the occupants (related or unrelated persons). Even limitations on parking and the size of the lot could enter into the equation when determining the number of occupants.
Let’s take a look at the city of Grand Rapids. If you own rental property in Grand Rapids, the above HUD guideline will NOT apply.
Grand Rapids has two codes which guide the number of occupants that can live in a dwelling unit—the Zoning Code and the Property Maintenance Code (PMC).
A PMC is often more straight forward than other codes or rules. The Grand Rapids PMC* simply states the number of residents allowed per the available square footage of the entire unit AND the square footage of each bedroom. In Grand Rapids, the current PMC ordinance (as of October 24, 2014) establishes the limits for occupants as follows:
Minimum bedroom size is 70 sq. ft. And, there must be at least 50 sq. ft. for each person in a bedroom, e.g. the bedroom would need 100 sq. ft. for two people.
The entire unit must have for:
1-2 occupants – 120 sq. ft. of living room area plus the minimum sq. ft. required for the bedroom(s) (There is no requirement for the size of the dining area.)
3-5 occupants – 120 sq. ft. of living room area plus an additional 80 sq. ft. for dining plus the minimum sq. ft. required for the bedroom(s).
6 or more occupants – 150 sq. ft. of living room area plus an additional 100 sq. ft. for dining plus the minimum sq. ft. required for the bedroom(s).
Also note that bedrooms, living and dining rooms must also meet the minimum standard dimensions for a habitable space, e.g. minimum ceiling height is 7’. (A variance is allowed in some cases where the only bedrooms in the unit are slightly less than 7’.) They must also meet the other requirements of a habitable space, i.e. window area, egress, etc.
Check with your local municipality about which PMC they are using.
* At the time of this writing, the City of Grand Rapids and City of Kentwood are using the 2012 International Property Maintenance Code.
The zoning code is more difficult because it attempts to regulate the number of residents based on “family” type. The definition of family varies within the zoning code. Interpretation can be frustrating from community to community. The zoning laws may also limit the number of parking spaces.
Building codes and other zoning ordinances may also dictate the size of the lot needed for the total square footage of a building, including set-backs. This applies more to building expansion projects and new construction. The total limit on building square footage could have a direct impact on the number of bedrooms per unit and therefore, total occupancy.
The Grand Rapids zoning code dictates the type of dwelling that can be built or maintained in a particular area of the community. A dwelling is defined as a building or portion thereof, which is used exclusively for human habitation. Included within this definition are one-family, two-family and multiple-family dwellings, apartment, hotels, boarding and lodging houses. Hotels, motels, motor hotels, tourist rooms or bed and breakfast operations, mobile homes or trailers, motor homes, automobile chassis, tents and portable buildings are not included.
For the purposes here, we are primarily concerned with one-family, two-family and multiple-family dwellings available for rent. The operative word in the above definition of dwelling is “family.” The zoning code further defines “family” as follows:
Family shall consist of one (1) of the following:
(a) An individual living in a single dwelling unit.
(b) A group of two (2) or more persons related by blood, marriage or legal adoption living in a single dwelling unit.
(c) Not more than six (6) foster care children living in a single dwelling unit. This provision is subject to P.A. 396 of 1976 as amended (MCL 125.583b).
(d) Not more than four (4) unrelated persons eighteen (18) years of age or older living in a single dwelling unit.
(e) Not more than six (6) foster care adults living in a single dwelling unit. This provision is subject to P.A. 218 of 1979 as amended (MCL 400.701 to 400.737).
As you can see, paragraph (d) above would limit the number of college students living together in one unit to a total of four—unless, of course, all the students were brothers and sisters from the same biological family. (Other communities, especially “college towns,” have even stricter unrelated person limits—some as few as no more than one unrelated person. For example, if a brother and sister are sharing a rental unit while attending college, they may not be able to ask another person to live with them as the other person is unrelated to both the sister and brother—creating a two unrelated person situation.)
In addition, after looking at the above definition of family in paragraph (b), you could quickly come to the conclusion that any number of people can live in an apartment as long as they are related by blood, marriage or legal adoption. But, you would be wrong. Why? Because the housing code dictates the total number of persons allowed to occupy a certain unit based upon square footage. (See above.) Read the next section for more details related to the housing code.
Zoning laws also vary from community to community so make sure you check out your local ordinances.
City of Grand Rapids Examples
Let’s look at two families that apply to live in a theoretical apartment with two (2) bedrooms in the City of Grand Rapids. The apartment has 750 sq. ft. of living and dining room space. Each bedroom has 120 sq. ft. of habitable sleeping area.
The first family that applies has two married adults and two biological children. Under the zoning code they qualify as a family and may live in one unit. According to the housing code, the living area must have 120 sq. ft. No dining area is required. This particular unit meets the requirements for overall square footage.
Now we must check to see if there is enough bedroom space. The PMC requires a minimum of 70 sq. ft. in each bedroom for one person. Both bedrooms in this example meet this minimum criterion. The code also states that there must be an additional 50 sq. ft. for each additional person sleeping in the room. In this example, there are four persons requiring a total of 120 sq. ft. in each bedroom. Since there is 120 sq. ft. in each bedroom, this family would qualify both on total square footage of the unit and square footage of the sleeping area. Two people would be allowed to sleep in each bedroom. This unit would also pass the stringent HUD two heartbeats per bedroom limit.
The second family that applies has a total of six persons—one adult and five children, including one person that is not related by blood or adopted. There is adequate off and on-street parking. Under the zoning code, the family qualifies to rent this unit.
Now let’s look at the PMC. The total square footage of living and dining area needed for this family is 250 sq. ft. Since our unit has 750 sq. ft., the family can still live there. But, how about the number of residents compared to the number of bedrooms. Each of the bedrooms in this example is only 120 sq. ft. The first bedroom can accommodate two people. The second bedroom can accommodate two additional people–for a total of four.
Now we have a problem. Per the Grand Rapids PMC, there is no room for the additional two occupants to sleep. So, even though the family qualifies to live in this unit by the zoning code and by the total square footage of the living and dining area, they are not allowed to live there because there is not enough bedroom area to accommodate the entire family. Hence, it would be illegal for you—the landlord—to rent to them.
In the above example the second family was not allowed to rent the unit because there were too many people. But, don’t the Federal and State laws say you can’t discriminate against families? Yes, that’s what the fair housing laws say; however, since the local code dictates a more stringent requirement, the landlord may deny this family tenancy.
If your community does not have a PMC or zoning code that dictates minimum square footage for occupancy, living or dining space or for bedrooms, you can apply the HUD guideline of two persons per bedroom, plus one additional person. Under this guideline, the second family in our example would still not qualify. They have more than five persons in the family. This family must rent a three bedroom home.
Other Code Issues to Be Aware Of
In some communities, there must be windows in a room in order for it to be used as a bedroom. And, those windows must be of a certain minimum size for emergency egress and ventilation reasons. You should always check with the local municipality codes to determine how many and which rooms can be used for sleeping.
How About Unmarried Couples Living Together?
In Michigan, case law has found that you cannot discriminate against unmarried couples of either sex. In Grand Rapids, zoning laws would allow the unmarried couple to co-habitat because they fall under the acceptable definition of a family as less than four unrelated individuals living together. The PMC does not address this matter whatsoever.
What About LGBTQ Couples?
There are no Federal or State laws regulating whether or not LGBTQ couples can occupy the same rental unit. However, there are local communities that do have fair housing regulations. For example, Ann Arbor does not allow discrimination based upon sexual preference. Check with your local municipality to make sure you are not discriminating in this area.
How About Older Children of the Opposite Sex Sharing a Bedroom?
There are no Federal or State laws that control how old and what sex children must be or can’t be in order to share a bedroom. Neither the Grand Rapid’s zoning nor PMC address this topic. Some communities in the State may have such a code. Be sure to check with the local appropriate city authority for details regarding this in your community.
What If There Aren’t Any Local Ordinances or Codes Stipulating Occupancy?
If your local government does not require certain occupancy limits, etc., follow the HUD guideline on page one and apply the Federal and State laws to the given situation. Never discriminate against someone from a protected class—in this case, families. And, if the tenant is receiving a Section 8 voucher, check with the administrator of the program to determine their occupancy limitations.
Always use the local code—first—as the foundation for your policy for the number of residents allowed to live in your rental units. Then apply the Federal and State laws to the circumstances. If you’re worried that you still might be confused on the number of allowed occupants, contact the RPOA’s office or the local fair housing center for guidance.
Also, if you are limiting the number of residents and make a statement to this effect in your advertising. Also be sure to properly reference the code that you are using to limit this occupancy. In absence of this statement, fair housing advocates are very likely to find you in violation of fair housing laws.
Disclosure: This Knowledge Base article is accurate as of the last update. Laws and policies are subject to change. If you have any questions, please call the office. Click here for contact information.