Following years of vague and challenging policy announcements, HUD has now been ordered by Congress to adopt the so-called "Keating Memo" from 1991 as the basis for investigation and enforcement of fair housing complaints involving occupancy standards of private housing providers. Pursuant to the Quality Housing and Work Responsibilities Act of 1998, HUD officially published the Keating Memo in the Federal Register in December, and adopted the memo's provisions as HUD's nationwide policy.
Since 1991, HUD has routinely distributed the Keating Memo to anyone who asked for a copy. Before December 1998, however, this memorandum from HUD's former General Counsel to his legal staff had never been officially published as HUD policy. In fact, HUD's seemingly erratic prosecution of fair housing cases involving occupancy resulted in a stinging opinion from the Ninth Circuit Court of Appeals in 1996. In a case from Bellingham, Washington, the Ninth Circuit ruled that HUD's conduct in prosecuting this fair housing occupancy case had been "heavy handed" and "reprehensible," particularly since HUD had made "inconsistent and misleading representation[s]" regarding housing providers' responsibilities to establish occupancy standards consistent with the Fair Housing Act. The Ninth Circuit specifically scolded HUD for having "done so little to enlighten the public as to what [it] expects of them."
By publishing the Keating Memo, HUD has reaffirmed the specific statement that it "believes that an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act." However, the Keating Memo also indicates that HUD will investigate familial status cases based on occupancy limits on a case by case basis, examining in particular any "special circumstances" of the case. Those special circumstances mentioned in the Keating Memo include size and number of bedrooms, size of the apartment as a whole, age of the children, "extra" rooms (such as a den or study which could easily be considered a sleeping area), or other physical limitations of the housing (such as the septic, sewer, or other building systems). HUD will also consider the impact of any state or local laws concerning occupancy.
Housing providers should continue to have a written occupancy policy that is consistently followed and justified by the specific characteristics of the property in question.
In a separate action, a bill was introduced to the House of Representatives in January that, if passed, would be called the "State Occupancy Standards Affirmation Act of 1999." Under this bill, any state established occupancy standard would be considered "reasonable" for purposes of determining whether familial status discrimination under the Fair Housing Act occurred. If a state fails to adopt an occupancy standard, a standard of two persons per bedroom plus infants would be considered reasonable. "Infant" is defined in this bill as a child less than six months old and sleeping in the same bedroom as the parent or guardian.