Occupancy Restrictions in Condominiums

familyWhen my wife and I bought our condominium a few years ago we had only one child. Now we have three kids and our condo board says that the bylaws limit the number of people in a unit to two per bedroom. While this is not the ideal situation for our family, we cannot afford to move to a bigger home at this time. My kids are small and they don’t cause any problems. Can the board enforce this bylaw and make us sell our home?

Answer:

You are right to explore all of your rights as a condominium owner with respect to these enforcement issues. This is a complicated question without a clear cut answer.

The condominium board does have the authority to enforce any rules set forth in the condominium documents (ie the Master Deed, Declaration of Trust, Bylaws and Rules and Regulations). Therefore, if the condominium documents include an “occupancy restriction” or a limit on the number of occupants allowed to reside in each bedroom, the board has the authority to enforce it. Legitimate reasons for enacting and enforcing such a restriction are to ensure that the building septic system can handle the needs of all of its residents, and to ensure the building is in compliance with city and state building and sanitary codes. In Massachusetts, for example, 105 MCR 410:400, the state sanitary code, requires 150 square feet of living space for the first occupant and at least 100 square feet for additional occupants.

If, however, the condominium board is using the occupancy restriction as a way to discriminate against families with children, this could be a violation of Federal Fair Housing Laws, which forbids discrimination against protected classes. While Fair Housing Laws generally permit occupancy restrictions prohibiting more than two people to occupy a bedroom, the law also says that the reasonableness of any occupancy restriction can be contested. This means that disputes over the reasonableness of an occupancy restriction will be evaluated on a case by case basis depending on the circumstances.

In a policy statement issued by HUD regarding occupancy standards, it was emphasized that a “two-people-per-bedroom” policy may be challenged where special circumstances are present. Some of the circumstances that may weigh in favor of a two-people-per-bedroom policy being found discriminatory are:

1. if the bedroom and living area are sufficiently large to allow for the additional person;
2. if the child (the additional person residing in the unit) is very young; and
3. if state/local ordinances would allow the additional person to occupy, despite the housing provider’s rules (here, the condo association’s rules).

In your case, your children are very young, should not be taxing the resources of the condominium, and you have indicated that they are not causing any problems. It is likely that they are not even toilet trained yet, meaning they are not contributing to an issue with overuse of the septic system, and they are not adults taking up guest parking spaces or using amenities otherwise reserved for residents of the Condominium. You have a good argument for an exemption to be made; however, should the condominium choose to enforce its bylaws, you may be forced to file a claim under the Federal Fair Housing Laws. A real estate attorney can help you evaluate your options and speak with the condominium board about the reasons to make an exception in your case.