is Limit on Apartment Occupancy?
Robert S. Griswold | Steven R. Kellman | Ted Smith
This column on issues confronting renters and landlords is written
by Counselor of Real Estate and
Certified Property Manager Robert Griswold, host of Real
Estate Today! with Robert Griswold (9 a.m.
Saturdays on AM1130 - KSDO radio, or on the Internet
and by attorneys Steven R. Kellman, director of the
Tenants' Legal Center, and Ted Smith, principal in a law
firm representing landlords.
QUESTION: Two friends and I attempted to rent a
very large five- room flat (with two bedrooms) in downtown but the
owner said he would allow no more than two people, in spite of the
fact that apparently his mother had grown up in the flat with her
parents, several siblings and grandparents.
We had excellent credit and references. I was told
it is illegal to refuse to rent to a group of people on the basis of
the number of occupants if the number in the group does not exceed
legal occupancy levels. Is this correct? If so, are there remedies for
being turned away?
ANSWER: Smith: California's housing statutes
do not state how many occupants a landlord may accept per rental unit.
The area is a subject of continuing dispute. Rulings by the California
Department of Fair Employment and Housing suggest that, in certain
situations, a two-per-bedroom plus one additional occupant standard
might be reasonable.
For example, in a two-bedroom apartment you could
limit occupancy to five individuals. This is a rule of thumb only and,
further, this restriction was applied across the board irrespective of
any discrimination against protected classes such as age, marital or
familial status, race, ethnicity, religion, and so forth.
For the landlord: As a landlord attorney, I'm on
your side but, I have to tell you, your limitation is very
restrictive. I would suggest you relax it a bit to at least go to a
standard of two-per- bedroom. That way, you will minimize your
exposure to discrimination suits.
Kellman: The Federal Fair Housing Act
applies to all states and it makes discrimination based on familial
status illegal. California also bars such discrimination.
Familial status laws include protection for
families with children. Some landlords wish to simply exclude families
with children from their rental units. They will not tell you that
kids are not allowed since that is too obvious so they do it in sneaky
One of those ways is to limit the number of
occupants allowed in the unit. The less the occupants, the easier to
keep the kids out. Imposing an unreasonable occupancy limit is one way
of saying to a couple or single parent with children that they are not
Limiting a large two-bedroom flat to only two
persons is unreasonable. Five or even six persons should be able to
rent that place. Consult your local Fair Housing Office for further
review of that situation since you could be entitled to damages for an
unlawful fair housing violation.
Question: Is there some law against a landlord renting a
flat which has asbestos leakage and not telling the tenant?
Smith: California's asbestos disclosure laws
require that landlords disclose the possible existence of asbestos in
rental property. Please note that this does not require the removal of
asbestos, but merely its disclosure. The landlord attaches the
asbestos disclosure form as an addendum to the lease agreement.
From your question, I assume that the landlord has
failed to give you the disclosure or even verbally tell you about the
asbestos. The landlord's failure to use the disclosure is not going to
bode well for him in the event you have a personal injury claim on
Kellman: Under Proposition 65, owners of
rental property built prior to around 1981 are generally required to
disclose to new residents that the rental unit and building may
contain asbestos that can be harmful to your health. Even if there was
no specific asbestos testing done, this disclosure should still be
made since so many buildings built prior to this date could have some
asbestos in them.
Landlords should follow all disclosure laws to
better protect themselves against potential liability. Also, if there
is asbestos obviously leaking and causing a hazard, the landlord
should act promptly to correct that situation.
Let your landlord know, in writing, about the
leaking situation. Be sure to protect yourself from any exposure to
the asbestos until the necessary repairs are accomplished.
A rug's life
Question: How often should a landlord replace a carpet in
a rental unit while the same tenants live in the rental unit?
Smith: There is no flat rule in California
requiring landlords to replace carpet for existing residents, no
matter how long they are in possession of the premises. Even when the
carpet seems old and slightly warn, it still satisfies the minimum
requirements. Not until it becomes a health and safety hazard does the
landlord have a duty to perhaps replace the carpet while you are still
in possession of the premises.
If there are health and safety issues regarding the
carpet such as nails or tack strips pointing up, then the landlord
should replace the carpet or fix the hazardous areas. Otherwise, there
is no duty, even after five years, to replace your carpet.
I owe, I owe
Question: I have a lease that runs for nearly eight more
months. I needed to break my lease because I got laid off from my job.
My landlord has rerented the flat to another tenant and they move in
the day after I leave.
My landlord rented the flat for $130 less per month
and he is trying to collect the difference from my $3,900 security
deposit for the rest of the lease, 7 1/2 months, or $975!
I know I owe him for the costs of rerenting the
flat, but according to the lease and the Civil Code it says he can't
collect double rent. Can he do this?
Smith: When tenants break their leases they
are responsible for rent for the balance of the term. As the
landlord's attorney, I am going to give the landlord the benefit of
the doubt on the facts. It appears that $130 per month on the
shortfall is the best he could do in the present market at the time
you moved out.
YOU'RE A TENANT OR LANDLORD, the authors stand ready to
answer your questions in this column, although letters
cannot be answered individually. Write them at: Rental
Roundtable, Homes Section, San Diego Union-Tribune, P.O.
Box 120191, San Diego, CA, 92112-0191. Or you may e-mail
them at firstname.lastname@example.org
2002 Rental Roundtable
Robert Griswold and the Real Estate
Today! radio show strongly support the intent and the letter of all federal and
state fair housing laws. As a reminder to all owners and managers of real
estate, note that all real estate advertised is subject to the Federal Fair
Housing Act, which makes it illegal to advertise "any preference,
limitation, discrimination because of race, color, national origin or ancestry, religion, sex,
physical disability, or familial status, or intention to make any such
preference, limitation or discrimination." Additional state and/or local
fair housing laws may also apply. Be sure to inform all persons that all
dwellings offered or advertised are on an equal opportunity basis.
Revised and Updated -
Wednesday, April 26, 2006
Robert S. Griswold, CRE, CPM, CCIM,
PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
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