You may have heard the rule that landlords and property managers can limit the occupancy of residential dwellings to two persons per bedroom. While this is generally the case, there may be exceptions you need to consider.  

Virginia Code section 36-105.4 states, “The owner or managing agent of a residential dwelling unit may develop and implement occupancy standards restricting the maximum number of occupants permitted to occupy a dwelling unit to two persons per bedroom, which is presumed to be reasonable.”  

The key words here are “presumed to be reasonable.” Presumption is a legal term of art that essentially means the side with the presumption gets the initial benefit of the doubt, and the burden is on the other party to rebut the presumption. In this context, a policy limiting occupancy to two persons per bedroom is presumed to be a valid policy, but that presumption is rebuttable.  

The Virginia Fair Housing Office has provided guidance on this issue. To rebut this presumption the size of the bedrooms, the number of bedrooms, and other special circumstances may make an occupancy policy unreasonable.  

One example highlighted by the Virginia Fair Housing Office includes two families of three individuals each consisting of two parents and one child. In one situation, the child is an infant, and the family is applying for a large one-bedroom apartment. In the other situation, the child is a teenager, and the family is applying for a small one-bedroom apartment.  

Depending on the totality of the circumstances, an occupancy limit of two persons per bedroom in the first example may not be reasonable because the child is an infant, who likely does not require a separate bedroom, and there might be plenty of space for three people to live. In the second situation, a policy of two persons per bedroom may be justified because the unit is small, and it may be a safety hazard for three people to live there.  

Ultimately, landlords and property managers must balance reasonable occupancy standards against protecting a property from overcrowding. Each situation must be evaluated based on the individual facts and circumstances of the applicants and the physical features of the residential unit.  

Always keep in mind that discriminatory statements, blanket policies against families with children, or discriminatory rules for the use of common areas are always fair housing violations.  

If you have questions about occupancy policies or other property management issues, please feel free to submit any such questions on the Virginia REALTORS® Legal Hotline.