I was recently presented with this scenario from an HOA Board President who was hoping to force some local residents out of his neighborhood:
“We have a group of unrelated college students living in a house in our neighborhood. Our governing documents say that houses in our neighborhood can only be used as single-family homes. Aren’t these roommates violating these provisions?”
My answer was, no. Unrelated roommates living together in a home are not in violation of a restriction requiring all homes to be used for single-family use. This is because, under the law, “family” might not mean what you think it means.
Denying a person housing because s/he is not married to the person s/he is living with, not related to the person s/he is living with, has no children, or is living alone would violate a variety of laws including federal and state fair housing acts. So, although local zoning laws and community association governing documents will usually use the term “single family” (or “one family,” which is common in Utah), they are not necessarily referring to single families. This is one of those times when the definition of a legal term defies common usage.
The legal definition of “family” varies a little depending on the body of law you are dealing with. For instance, in Utah, state statutes do not define the term but individual municipalities do. Although, the definitions used by each municipality are not exactly the same, they are generally similar because they all rely on the same caselaw and codified law that have developed on both federal and state levels over time. The City of Orem provides a good and common definition:
Family shall mean one of the following groups of individuals, but not more than one at the same time: (1) an individual living alone; or (2) two or more people all of whom are related to one designated occupant of the dwelling by blood, marriage, adoption, or legal guardianship and their foster children and up to two other unrelated persons who do not pay rent and are not the primary occupant(s) of the dwelling; or (3) up to three related or unrelated individuals who live and cook together as a single housekeeping unit; or (4) two unrelated individuals and any children of either of them living as a single-housekeeping unit; (5) up to six unrelated individuals living in the Student Housing Overlay zone or PD-21 zone; or (6) a number of unrelated individuals as may be specifically indicated in a particular PD zone.
For purposes of this section, primary occupant(s) is defined as the owner of the dwelling (owner is as defined in Section 22-6-9(I)(2)) and all persons related to the owner, or, if the owner does not live in the dwelling, the primary occupant(s)shall mean the person(s) to whom the owner has leased the dwelling and all persons related to the lessee. The definition of family includes up to two guests if the guests live and cook together with the family in a single dwelling unit and do not pay rent or give other consideration for the privilege of staying with the family. A guest under this section is defined as a person who stays with a family for a period of less than thirty days within any rolling one year period and does not utilize the dwelling as a legal address for any purpose. For purposes of the definition of family, the term “related” shall mean a spouse, parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew, niece, great-grandparent, and great-grandchild. The term “related” does not include other, more distant relationships such as cousins.
As stated in Orem’s definition, the term “family” can refer to a variety of groups including any group of 3 or less unrelated persons who live and cook together as a single housekeeping unit.
The bottom line for community association boards is, when you see the term “single family” in your governing documents, make sure you understand exactly what it is referring to. Go online and become familiar with your municipality’s definition (or have your attorney explain it to you). The best practice is to have a definition for “family” or “single family” in your governing documents that is consistent with the definition used by your local municipality. Your documents should also contain some detail regarding what constitutes a housing use violation. For instance, although you usually cannot deny housing based on the level of relationship between residents, you may restrict how many people live in a unit based on health and safety considerations. If your governing documents do not include these provisions and details, you should consider amending to include them.