Occupancy Standards Under the Fair Housing Act

Housing and Urban Development

Washington, D.C. 20410-2000

September 25, 1995

MEMORANDUM FOR: Fair Housing Enforcement Directors, Directors of Investigations Divisions, Directors of FHAP and FHIP Divisions
FROM: Elizabeth K. Julian, Acting Deputy Assistant Secretary for Policy and Initiatives, EP
SUBJECT: Occupancy Cases

This confirms the electronic mail message sent to each of you on September 9, 1995, by Sara K. Pratt, Director of Investigations.

As you know, the General Counsel issued a memorandum dated July 12, 1995, withdrawing a memorandum issued by former General Counsel, Frank Keating, regarding the application and interpretation of facially neutral occupancy standards under the Fair Housing Act. The July 12 memorandum described a "safe harbor" occupancy standard drawn from the BOCA Code and announced that rule-making on the subject on occupancy standards would be forthcoming.

Considerable confusion has arisen about the interpretation of the July 12 memorandum, and the rule-making process has been expedited.

Until a final rule has been issued, do not use the July 12 memorandum as a basis for conducting investigations or making determinations. All cases involving facially neutral occupancy standards must be referred to the Office of Investigations for concurrence before issuance.

In this interim period, investigations should continue as they were conducted prior to issuance of the July 12 memorandum, including gathering of information about the size and configuration of the unit(s) in question, as well as information about applicable state or local occupancy codes.

As always, if you have any questions, please contact the Office of Investigations' staff.

cc: Nelson Diaz