What is Limit on Apartment Occupancy?

Robert S. Griswold | Steven R. Kellman | Ted Smith
1-September-2002 Sunday

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 at www.retodayradio.com), 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 ways.

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 welcome there.

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.

Sneaky leak

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 asbestos.

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.

IF 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 rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2002 Rental Roundtable Index

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.

FHEO Logo

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
Email: rgriswold.ret@retodayradio.com