The U.S. Department of Housing and Urban Development's (HUD) Office of Fair Housing and Equal Opportunity (FHEO) issued an enforcement memorandum on May 22, 2026, permanently rescinding its 2020 guidance on assistance animals and dramatically narrowing the circumstances under which FHEO will issue a reasonable cause determination in animal-related accommodation complaints. Effective immediately, FHEO will find reasonable cause and pursue prosecution only for cases involving animals individually trained to provide disability-related assistance. According to HUD, this policy change aligns the Fair Housing Act standard for assistance animal accommodations with the service animal definition applied under the Americans with Disabilities Act (ADA). This represents a significant development for landlords and property managers who often face an abundance of emotional support animal (ESA) requests.
Pursuant to the 2020 FHEO guidance, as well as HUD's 2013 guidance that preceded it, housing providers were expected to treat untrained ESAs essentially the same as trained service animals, including waiving pet policies, forgoing pet fees, and limiting follow-up questions regarding the ESAs, or else face a fair housing complaint. Residents currently have ready access to an entire online industry enabling any pet to be converted into an ESA via a form letter or immediate certification, following only a brief interaction and payment of a fee. Where housing providers denied ESA requests or merely asked follow-up questions, fair housing complaints often followed, sometimes accompanied by prolonged investigations. Indeed, more than 20 percent of FHEO's fair housing complaints currently revolve around untrained ESAs.
The obligation for private landlords to accommodate untrained ESAs arises from a 2008 HUD public housing pet rule that was never intended to apply to private landlords. Courts considering the issue deferred to HUD's nonbinding guidance, and the Department of Justice (DOJ) issued an opinion that further extended the concept. Unfortunately for landlords and housing providers, they were never heard on this issue given that none of this went through notice-and-comment rulemaking under the Administrative Procedure Act.
Now, under the new enforcement standard, FHEO will use the ADA's "training" component to assess animal-related accommodation complaints under the Fair Housing Act. In order to qualify as an accommodation under the Act, an animal must meet the training definition of a service animal in the DOJ's ADA regulations. Specifically, the animal must be "individually trained to do work or perform tasks for the benefit of an individual with a disability." Importantly, merely providing "emotional support, well-being, comfort, or companionship" is insufficient to constitute qualifying "work" or "tasks" under this definition. Under the new policy, requests to waive pet policies for trained animals are presumptively reasonable while requests for untrained ESAs are not. HUD's May 22 memorandum makes clear that FHEO no longer expects housing providers to categorically extend accommodations made for trained assistance animals to untrained ESAs.
Housing providers may now more confidently enforce pet policies and assess pet fees/deposits with respect to untrained ESAs, at least as to HUD FHEO enforcement. FHEO complaints involving ESAs will no longer automatically result in reasonable cause findings or mandatory conciliation agreements. All open ESA cases at FHEO regional offices are being sent to the Acting Deputy Assistant Secretary for a case-by-case determination of the outcome. HUD further indicated that it intends to engage in notice-and-comment rulemaking to harmonize the Fair Housing Act's regulations with the ADA, finally providing housing providers with a formal opportunity to give their input.
There are some important caveats: First, the May 22 memorandum addresses only HUD FHEO enforcement and does not amend the Fair Housing Act itself or prevent private lawsuits. Residents and applicants still also retain the right to file private actions in federal or state court within two years. Second, federal courts in some circuits may continue to apply broader standards for ESA accommodations based on existing case law, particularly in more plaintiff-friendly jurisdictions. (This is especially true given the 2024 Supreme Court decision in Loper Bright, which overturned the longstanding legal doctrine of judicial "deference" to executive agency interpretations, known as the "Chevron" doctrine.) Third, state and local fair housing laws may independently require broader ESA accommodations than HUD's new enforcement approach. Significant litigation challenging and testing the boundaries of this new policy should be expected.
Housing providers should review and update pet and animal policies to distinguish between trained service/assistance animals and untrained ESAs. Housing providers should also consider whether to begin enforcing pet fees/deposits for ESAs, mindful of what jurisdiction they are in. As always, the interactive accommodation process should continue to be documented carefully, with special attention paid to whether the animal is trained to perform specific disability-related tasks. Housing providers should consult counsel prior to denying any accommodation request, given the still-present private litigation risk. Finally, housing providers should monitor HUD's forthcoming notice-and-comment rulemaking and consider participating to shape the final rule.
The members of Baker Donelson's Fair Housing and Accessibility Team are available to help housing providers evaluate their policies, respond to accommodation requests, and navigate the evolving legal landscape.