HUD Rescinds Emotional Support Animal Guidance

The U.S. Department of Housing and Urban Development's (HUD) Office of Fair Housing and Equal Opportunity (FHEO) on May 22, 2026, announced that it is permanently rescinding the 2020 notice regarding assistance animals and adopting a new enforcement posture, prompted by President Donald Trump's February 2025 executive order instructing federal agencies to prioritize enforcement resources and "de-prioritiz[e] actions to enforce regulations that are based on anything other than the best reading of a statute."

Background

Over the past decade, HUD guidance significantly broadened the scope of animal-related reasonable accommodations beyond the statutory language of the Fair Housing Act (FHA) and specific examples set forth in the act's implementing regulations. HUD's implementing regulations cite one specific example of an animal-related reasonable accommodation: permitting a blind person to live with a trained guide dog. However, beginning with a 2008 public housing pet rule and continuing through sub-regulatory guidance issued in 2013 and 2020, HUD extended its regulatory framework to state that housing providers were required to grant requests for accommodation for untrained emotional support animals (ESAs).

The 2020 FHEO notice declared that ESAs, along with trained service animals, "are not pets" and instructed housing providers that pet fees could not be assessed for untrained ESAs. The notice also outlined documentation practices for disability verification and accommodation requests. Although characterized as nonbinding best practices, the guidance was widely treated as establishing categorical fair housing obligations for housing providers.

Over time, a number of courts deferred to this HUD guidance, and the legal standards for animal-related reasonable accommodations under the FHA came to diverge significantly from those applied under the Americans with Disabilities Act (ADA).

The New Federal Enforcement Standard

Under the new standard, HUD will use the training component of the ADA's definition for service animals to assess animal-related reasonable accommodation complaints under the FHA.

• HUD will find reasonable cause only where the animal has been "individually trained to perform work or perform tasks directly related to the complainant's disability."
• Requests to waive pet policies for animals trained to perform specific disability-related services will be deemed "presumptively reasonable."
• Requests to waive pet policies for untrained ESAs are not presumptively reasonable.
• FHEO no longer expects housing providers to categorically extend accommodations for trained assistance animals to untrained ESAs.

Unlike the ADA, which limits service animals to dogs, FHEO's guidance acknowledges that an animal-related reasonable accommodation under the FHA could involve a species other than a dog, provided the animal is trained to perform a needed disability-related service to assist with the individual's specific disability.

The memorandum directs regional directors to send all open ESA cases to the acting deputy assistant secretary for enforcement and programs for a case-by-case determination on the merits.

Henderson v. Five Properties LLC

The guidance expressly cites a recent federal district court decision, Henderson v. Five Properties LLC, No. 24-750 (E.D. La. July 16, 2025), in which the court rejected a plaintiff's reasonable accommodation claim regarding her ESA. When the plaintiff invoked FHEO's 2020 guidance, the court found it "unpersuasive," consistent with the U.S. Supreme Court's holding in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), that eliminated Chevron deference to agency interpretations. The court held that both the "necessity" and "reasonableness" of an accommodation involving a generally applicable pet fee must be analyzed through a fact-specific, case-by-case determination rather than through categorical agency pronouncements.

Private Rights of Action and State Laws Remain

Notably, the guidance does not eliminate any private litigant's ability to bring claims, and it does not address state and local laws that may take a different or broader approach than the federal government. The FHA provides that a complainant may file a civil action in federal or state court within two years after the occurrence or termination of the alleged discriminatory housing practice. Although FHEO's enforcement posture has shifted significantly, the memorandum expressly notes that nothing in the guidance affects the rights of parties to seek redress through a private action in court.

Future Rulemaking

HUD has signaled its intent to engage in notice-and-comment rulemaking regarding animal-related reasonable accommodations, with the aim of harmonizing HUD's regulations with those of the ADA to the maximum extent possible. Noting that the 2020 FHEO guidance was adopted without going through the notice-and-comment rulemaking process of the Administrative Procedure Act, the memorandum stated that whether a particular accommodation is reasonable is "the type of fact-intensive, case-specific determination that would benefit from notice and comment rulemaking."

Housing providers and industry groups will likely have an opportunity to participate in the rulemaking process and provide input on the development of new regulatory standards.

Practical Implications

This guidance represents a significant shift in the federal enforcement landscape for animal-related reasonable accommodations. In light of these changes, housing providers should consider the following steps:

• Review and Update Pet and Animal Policies. Housing providers may wish to revisit existing pet policies and animal accommodation procedures. Providers should consider if their current policies adequately distinguish between trained assistance animals and untrained ESAs.
• Consult Any Relevant State or Local Laws. Housing providers operating in jurisdictions with independent state or local fair housing requirements should assess whether those laws impose separate obligations regarding ESAs.
• Monitor Ongoing Rulemaking. HUD's planned notice-and-comment rulemaking will provide an opportunity for housing providers to shape the regulatory framework going forward. Providers and industry groups should monitor the Federal Register for proposed rules and engage in the public comment process.
• Document Accommodation Decisions. Private litigants retain the ability to bring FHA claims, and courts will continue to apply a fact-specific analysis. Thorough records documenting the basis for accommodation decisions may be important in any future proceedings.
• Assess Pending Matters. Open FHEO complaints involving untrained ESAs are being referred for individual case-by-case review under the new standard.

As this area of the law continues to evolve, housing providers should consult with experienced fair housing counsel to ensure compliance with both the new federal enforcement framework and any applicable state or local requirements.

If you have any questions about the issues summarized above, please reach out to the authors or another member of Holland & Knight's Multifamily Housing Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.