Occupancy Limits: How Many People Can Live in Your Apartment?

There is no single national limit on how many people can live in an apartment. Your city or county housing code sets the legal maximum, often as a minimum amount of floor space per person, and your lease can set a lower limit if it is reasonable. For fair housing purposes, HUD treats a landlord's limit of two people per bedroom as generally reasonable, but a limit can still be unlawful if it is used to keep out families with children or ignores large bedrooms, an infant, or extra rooms such as a den.

Who sets the occupancy limit?

Two kinds of limits can apply to your home, and your household has to fit within both:

• Government limits. Local housing codes set the most people a unit can safely hold, often by floor area, and your city's housing or code enforcement office enforces them. Texas adds a statewide cap. These limits apply no matter what your lease says.
• Your lease's limit. Your lease may cap the number of occupants. A landlord's cap can be lower than the code allows, but it has to be reasonable under fair housing law, and New York restricts it further (see below).

Three examples show how different the government rules can be:

HUD's two-per-bedroom guideline is not in this table because it is not a legal cap on your household. It is the starting point HUD uses to decide whether a landlord's own limit discriminates against families with children.

What does HUD's two-per-bedroom guideline mean?

In 1998, HUD formally adopted a 1991 memo from its then General Counsel, Frank Keating, as its standard for judging landlord occupancy policies under the Fair Housing Act. The memo says a policy of two people per bedroom is reasonable as a general rule, but that a family can challenge it. HUD looks at:

• The size of the bedrooms and the unit. A family of five turned away from a two-bedroom apartment with large bedrooms and spacious living areas may support a discrimination charge; a family of five turned away from a small two-bedroom mobile home likely does not.
• The ages of the children. Refusing two parents and an infant a large one-bedroom apartment may support a charge; refusing two parents and a teenager is less likely to.
• The layout. A family of five rejected for a two-bedroom unit with a den or study may have a case that a family rejected for a two-bedroom unit without one does not.
• Building limits. A landlord can point to the capacity of the septic, sewer, or other building systems.
• State and local law. A landlord policy that mirrors a government occupancy code is more likely to be found reasonable.
• Signs of pretext (a stated reason that covers for discrimination). Discriminatory statements, rules that restrict children in common areas, past "adults only" marketing, or enforcing the limit only against families with children all point toward discrimination.

The memo adds that a policy limiting the number of children per unit is less likely to be reasonable than one limiting the total number of people.

How do fair housing rules limit a landlord's cap?

The federal Fair Housing Act protects families with children under 18, and the U.S. Department of Justice says that protection bars a landlord from placing an unreasonable restriction on the total number of people who may live in a dwelling. The Act still allows reasonable local, state, and federal limits on the maximum number of occupants. In practice:

• The limit has to be the same for adults. California's tenant guide says a landlord can set reasonable occupancy standards but cannot use overcrowding as a pretext for refusing to rent to tenants with children if it would rent the unit to the same number of adults. The guide also cites a landlord-law treatise saying that a policy stricter than two people per bedroom plus one more person is suspect as discrimination against families with children.
• A new baby. If a birth takes your household over the lease's limit, the limit still has to be reasonable under HUD's factors, including the infant example above. In New York City, the housing code allows the extra person for one year after a birth, or after a child turns 4, even if the household then exceeds the code limit.
• Some housing is exempt. The protections for families with children do not apply to qualifying senior housing, such as communities for people 55 and older. The Act's main rental rules also do not cover a room or unit in a building with four or fewer units where the owner lives, or a single-family house rented by an owner who owns no more than three and does not use a broker, though the ban on discriminatory ads still applies. State or local law can still protect you in that housing.

What is the difference between a tenant and an occupant?

A tenant rents the unit under a rental agreement and has the right to live there for the rental period, as California's tenant guide defines the term; when a rental agreement names more than one tenant, they are co-tenants. Here, an occupant lives in the unit with permission but is not a party to the landlord's rental agreement. Both California's and New York's tenant guides recognize oral rental agreements, which can create tenancy and rent obligations without a signed lease. Occupants still count toward occupancy limits. A guest is a visitor, and your lease's guest clause may set how long someone can stay before they count as an occupant who may need the landlord's approval; see our guide to guest policies in rental leases.

New York spells this out in its Roommate Law (Real Property Law section 235-f). It defines an occupant as someone other than a tenant or a tenant's immediate family who lives in the unit with the tenant's consent, and it bars landlords from limiting occupancy to the tenant and immediate family. A lease that names one tenant allows that tenant's immediate family, one additional occupant, and the occupant's dependent children, as long as the tenant or the tenant's spouse lives there as a primary residence. The tenant must tell the landlord the occupant's name within 30 days after the occupant moves in, or within 30 days after the landlord asks. An occupant gets no right to stay if the tenant leaves unless the landlord agrees in writing, and the law does not stop a landlord from enforcing legal overcrowding limits.

To add someone as an occupant or as a tenant on the lease, see our guide to adding someone to your lease.

What to do before someone moves in, or if a limit seems too low

1. Find the code limit. Ask your city or county housing or code enforcement office for its occupancy standard, then measure your bedrooms and living space.
2. Read your lease's occupancy and guest clauses. Ask the landlord for written approval before a new person moves in if the lease lawfully requires consent. In New York, qualifying occupants under the Roommate Law above need no consent; send the occupant's name within the 30-day deadline. Our guide to understanding your lease terms covers the rest of the lease.
3. Ask for the policy in writing. If a landlord's limit would keep your family out, ask for its written occupancy policy and the reason for it, and compare it with HUD's factors above.
4. File a complaint if you believe the limit targets children. You can file a fair housing complaint with HUD within one year of the discriminatory act. Our guide to fair housing protections explains how.
5. Follow enforceable occupancy limits. An extra occupant added without legally required approval can be treated as a lease violation, which can lead to a notice to fix the problem or move out. Qualifying New York roommate arrangements need no approval, but legal overcrowding limits still apply. See common lease violations and their consequences.