What You Need to Know About Maximum Occupancy Laws
Maximum occupancy laws set forth the number of dwellings units, sleeping rooms or sleeping spaces that may be placed in a room in a dwelling unit for rent to one or more tenants. These occupancy limits are usually based on square footage or square footage per person restrictions designed to prevent space from being overcrowded with people and to ensure that space is not rented under fraudulent pretenses. These laws exist because, when you have too many people living or sleeping in a space, it can create a number of health, environmental and safety problems. For example , in an overcrowded space, it can be difficult for firefighters to identify whether anyone remains inside a home to be extracted in the event of an emergency. Even more importantly, the danger to tenants who can become trapped during an emergency increases as the number of people in a space increases. Overcrowding can also increase the likelihood of the spread of disease – something we all learned in 2020 and 2021. Successfully preventing overcrowding is a critical component of ensuring the health and safety of the public.
Maximum Occupancy Regulations in Washington State
The primary laws governing maximum occupancy in Washington State are the Washington Model and National Model Building Codes. Both of these codes have specific formulae for calculating the maximum occupancy for different structures. For residential spaces, the formula for determining maximum occupants is 200 square feet of net unobstructed living space per occupant. The formula for most business use spaces (offices, retail establishments and factories) is one occupant for each 100 square feet of net unobstructed space. Assembly areas like churches are governed by a formula too, based on the square footage of the room and whether there will be fixed or movable seats; the square footage is divided between %15 and %20 depending on the arrangement of seats.
Although the Washington State Model Building Code does not specifically mention the need to post a max occupancy sign, the 2009 ICC/ANSI A117.1 Standard for Accessible and Usable Buildings and Facilities does. Specifically, Section 403.2.12 requires business owners to post a sign with the maximum number of seats, toys, sleeping rooms or spaces allowed (as determined by a design professional). The Standard also states that this sign must be posted in a location directly adjacent to a door leading into the room or suite and that it must have raised characters for up to 16" high and Braille.
Also relevant to Washington State business owners is the Washington State Tenants Act. Washington State law requires owners to disclose a notice of any maximum occupancy to a tenant by placing it in a rental agreement. The maximum number of occupants in the dwelling unit is then limited by the building code. However, if the lease does not address a maximum occupancy, owners must abide by the maximum standard set forth in the Model Building Code, which is 2 persons per bedroom for a lease of 30 days or longer.
How Does Maximum Occupancy Work?
The calculation for maximum occupancy on a commercial building is generally formulated by an architect. The purpose of determining maximum occupancy loads on buildings is to prevent fires, whether caused accidentally or intentionally. This is to allow for enough strength in the floor systems or footings to support a certain live load and egress routes. The calculations are specific to the site design and will equate to an occupancy rating on a certificate of occupancy.
The Washington State Building Code (WAC 51-50-009) does a good job of describing how maximum occupancy is determined: "This chapter contains the minimum requirements to establish the type and number of occupants and the required means of egress. The key to applying these provisions is to calculate your occupancy loads using actual dimensions and the maximum occupant load for each space, then select your required exit arrangement. With the required egress area known for a building or occupancy, the building official may require the application of these sections to a greater extent than required due to the specific occupancy use and increase of actual occupancy loads over the room table." Occupancy classifications vary widely, from places of assembly, business, mercantile, storage, industrial, and more. The loads can differ quite a bit depending on the classification of use even if the density seems the same on the surface. The building codes may take into account the size of the building, purpose, the number and placement of exit routes, as well as life safety equipment such as sprinklers, alarms, and other types of safety equipment when determining the maximum number of occupants allowed. Even commercial buildings generally have to be inspected and approved by the fire marshal to ensure that the building is up to code.
Enforcement and Compliance with Maximum Occupancy Rules
Businesses and property owners must understand the different entities responsible for compliance and enforcement of maximum occupancy laws in Washington State. While complaints regarding maximum occupancy may be filed with the DOL, these cases are primarily heard in Washington courts. Where a complaint is made to the DOL regarding maximum occupancy, the DOL will refer this matter to the attorney general’s office or, for an employer, the L&I for investigation.
When investigating a maximum occupancy claim, investigators will analyze a variety of factors including the subject’s duties and responsibilities, the capacity of the subject’s employer provides to its employees, number of employees, information found in the subject’s I-9 and W-2, etc. Importantly, investigators may rely on de novo evidence when making their findings, including worker interviews. If the investigator determines that there is non-compliance with maximum occupancy, the investigator will recommend penalties to the agency to impose on the offending entity. The agency can enforce maximum occupancy either in civil and criminal courts. Civil actions include maximum occupancy lawsuits and administrative actions. Criminal actions include misdemeanors, gross misdemeanors, Class C felonies, and as an aggrieved person the right to sue in court.
In addition to the civil and criminal penalties discussed above, 16 U.S.C. 2293 provides a specific criminal penalty if the non-compliance is based on unlawful restriction in hot water container capacity, capacity limitation of certain blends of gas or slime mixtures mean, or unlawful limitation of distribution of propane. Under those circumstances, the penalty could be up to $1,000 per day per violation.
While the penalties can be severe, some United States District Courts have held the penalties are limited to a maximum fine of $10,000 per day per violation for violations of maximum occupancy. Under these United States District Court’s interpretations, penalties cannot be stacked against an individual or entity for violations occurring over multiple days. That is, it appears that the District Courts would not award penalties for violations that occur on more than one day. There appears to be no definitive case law that addresses whether the District Court’s opinion is still good law, consider the District Court’s opinion was issued in 2002.
Exceptions and Special Considerations under Maximum Occupancy Laws
Washington State Maximum occupancy laws provide specific scenarios where different occupancy numbers may apply. Certain types of property, such as residential daycare facilities, adult family homes, and bed and breakfasts, may be granted different occupancy standards from typical residential properties. However, these exceptions are very limited.
For example, the Department of Social and Health Services (DSHS) has its own set of rules for these different types of properties but only within the context of DSHS related licensing. For example, a maximum occupancy is set at eight for supervision regulated Adult Family Homes; however, three people will count against the section 42 U.S.C. § 1610 (a)(3) limit on the number of persons permitted in a group residence. It must also be remembered that individuals whose license status is not revoked, suspended, or denied are not considered to count against the specified section 42 U . S.C. § 1610(a)(3) number if they meet the definition of a "disabled person".
Certain other special uses may also apply. The following is a brief explanation of these unusual exceptions.
If a property is used as a youth center, hobby shop or a swimming pool that is licensed by the Seattle-King County Department of Heath, the area counts as an exempt use and is not counted against the property’s maximum occupancy standard.
A maximum of 36 days of exceptions may also be granted, and the use must not otherwise violate code or risk public safety. If a property is used as a single family housing unit which functions in some way as a family residence and has been continuously occupied by a large number of residents for an extended time, the owner or landlord can file for an exemption to the King County Department of Permitting and Environmental Review.
COVID-19 and Occupancy Rules
Governor Inslee’s Proclamation 20-28.5, signed May 12, 2020, implements the Governor’s three-phase plan for reopening through a county-specific phased approach to reopening. A maximum number of individuals permitted in a business is identified by Washington counties’ phase of reopening.
When determining occupancy limits during phase 1, 2, or 3, cities and counties in Washington may either support Governor Inslee’s pandemic response plan and apply statewide occupancy standards, or may create custom standards unique to local needs after consultation with public health and small business. In either event, occupancy limits should be posted on the business’s door, advising customers to not exceed the stated limit within.
Governor Inslee temporarily suspended exclusion periods for residential tenants under the Residential Landlord-Tenant Act for unlawful rent, charges, or utilities, as well as the enforcement of interruptions in rent due under a residential lease for failure to pay. (Proclamation 20-19, amended Proclamation 20-19.1, Proclamation 20-19.2, Proclamation 20-19.3, Proclamation 20-19.4 and Proclamation 20-19.5)
Similarly, Governor Inslee has prohibited the enforcement of unlawful detainers, i.e. evictions, during the Emergency ("Eviction Moratorium"). The Eviction Moratorium only applies to actions authorized under the Residential Landlord-Tenant Act involving nonpayment of rent or charging unlawful rent, fees, or charges. (Proclamation 20-19.2)
Guidance for Owners and Building Managers
Monitoring, Assessing, and Maintaining Compliance With Maximum Occupancy Laws in Washington State
For property owners and managers, the risk of liability is not eliminated when a reasonable accommodation is made for handicapped residents (i.e., allowing more people than the city code otherwise allows). It is imperative that landlords continue to monitor occupancy on an ongoing basis to confirm the reasonable accommodation is being narrowed to only those individuals who actually require it.
From my experience, I can say anecdotally that ADA raters push the envelope the majority of the time. We’ve encountered situations where they attempt to claim the resident’s non-handicapped boyfriend can move into the apartment even though the relationship is tenuous at best and our legal team are forced to get involved. We’ve also had ADA raters claim that household members move frequently from one owner’s residence to another but don’t provide proper proof of residency. For example, we previously dealt with a situation where the purportedly handicapped individual had recently moved out of state, but the second hand said "oh, I don’t know where she is staying at the moment . " It’s only on very rare occasions that we’ve had to deny a request, which in our experience is the right amount. But even though we have found those requests permissible, we do often have to monitor, assess, and adjust the residents’ situation in order to accommodate hang-ups and avoid any litigation.
A simple way for a property owner or manager to monitor if they have more residents than allowed under the local code is to follow the same practice they use with all residents. Typically this can include regular billing statements as well as maintenance requests and maintenance visits that will end up revealing overall occupancy. Additionally, most management software keeps track of historical occupancy and can be used to run reports showing over-housing. This can help you gauge whether the person’s need for an accommodation has changed. You can also request documentation from the tenant that their need for the reasonable accommodation has not changed annually as required by HUD when approving requests for reasonable accommodation.
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