Disclaimer: This article is not legal advice. It is a summary of observations by the author.
Summary of the Issue
HUD released a memorandum on May 22, 2026 signaling that they no longer plan to extend legal protections to emotional support animals (ESA’s). This is a major change and a shift away from prior FHEO guidance (memos issued in 2013 and 2020).
If emotional support animals are no longer protected by the Fair Housing Act, then one can assume housing providers will reclassify ESA’s as pets.
This is significant because when it comes to pets, housing providers have much more flexibility around rule making. Some housing providers allow pets, some do not, some charge deposits and fees, some do not. Ultimately this means, an untrained ESA previously approved under a reasonable accommodation may have to follow the same terms and conditions as a pet moving forward.
Key Takeaways
Service animals are highly trained and perform a task or do work for people with disabilities. Emotional support animals (also known as companion animals) have no training or special skills, but are intended to provide comfort and support for a person with a disability such as depression or anxiety. There are no formal certifying bodies for ESA’s.
For nearly two decades ESA’s have been protected under the Fair Housing act based on 2 guidance from HUD issued in 2013 and 2020.
This resulted in the emergence of a cottage industry that sold letters to tenants looking to classify their pet as an ESA in order to circumvent the owners pet polices.
On May 22, 2026 HUD released a new memo outlining its intent to no longer treat ESA’s like service animals.
A catalyst for this change was a legal case where the court found HUD’s prior memos “unpersuasive”.
This case was reviewed by Assistant Secretary for Fair Housing and Equal Opportunity, Craig Trainor, who concluded it was best to permanently rescind FHEO’s 2020 notice regarding assistance animals.
What Happened
On May 22, 2026, HUD issued a memo titled “Enforcement Guidance - Assessing Requests for the Use of an Animal as a Reasonable Accommodation Under the Fair Housing Act.
Inside the memorandum the agency outlines that it will be focusing its resources on cases “involving animals trained to provide disability-related assistance”. Meaning HUD will no longer be pursuing complaints related to discrimination if the animal is untrained.
This is a major deviation from prior guidance that many tenants relied on to convince their landlord to accept their reasonable accommodation for their ESA.
In a recent federal case, Henderson V. Five Properties LLC (July 2025) this logic was tested when the plaintiff attempted to invoke FHEO’s 2020 memo as the basis for her lawsuit.
The judge in this case found HUD’s 2020 notice “unpersuasive" and highlighted the following points;
HUD lacked rulemaking by failing to follow the Administrative Procedure Act.
The Supreme Court's decision to eliminate the Chevron doctrine significantly reduced federal agencies ability to interpret ambiguous laws.
Discrimination claims should be on a case by case basis. In this particular case, the $400 animal fee did not impose a major burden on the tenant.
This case was the first time a federal court had addressed the 2020 memorandum. As a result of this case, the Assistant Secretary of FHEO, Craig Trainor closely examined prior guidance from FHEO issued on January 28, 2020 which broadened the scope of protected classes to include animals that provided “emotional support”, not just service animals. Mr. Trainor concluded that “six years after this guidance was issued, it remains an immense challenge to determine whether an animal-related reasonable accommodation should be granted or denied” and that greater clarity was needed on the distinction between pets and emotional support animals.
Why this Matters
For years housing providers have been in a tough situation. They have been asked by applicants with ESA’s to set aside their pet policies or face a lawsuit.
On the surface this may seem like a minor issue, but the majority of landlords in America are small mom-and-pop owners. They often own one home and may not want pets in their property, or at the very least, want to have a say in the type of pet allowed in the home. Some landlords simply don’t like pets, some are deathly allergic, and others are worried about damage.
For landlords who were only worried about pet damage, they could overcome this concern by charging a fee, deposit or pet rent to offset the additional risk. When ESA’s became protected under the Fair Housing Act, they were no longer allowed to offset the risk or enforce their preferred pet policy. This caused some small landlords to sell their properties rather than comply with the memo.
With HUD’s new guidance this will no longer be an issue for many landlords. Applicants with untrained animals will be required to follow the same policies as an applicant with a pet since HUD now sees them as “pets”.
In some instances, where states have more restrictive rules, housing providers may have to accommodate ESA’s, but this will be addressed at a local level versus a federal level.
Tenants who live in a state without clear rules for ESA will have to adapt to the new landscape.
Frequently Asked Questions
Question: How does HUD’s new memo impact the guidance issued by FHEO in 2020?
Response: It permanently cancels HUD’s prior guidance on ESA’s?
Question: Are landlords no longer required to accept my ESA?
Response: Unless your state has rules that protect ESA’s, then it is very likely your landlord will make their decision to accept your ESA based on the same criteria they use to evaluate pets.
Question: What does trained versus untrained mean?
Response: This new standard will replace the old ESA definition of “emotional support” with the Americans with Disabilities Act (ADA) definition which requires that the animal be individually trained to do work or perform tasks for the benefit of a person with a disability.
Question: If my landlord has a “no pet” policy can they ask me to remove my ESA now?
Response: If your landlord has already approved your ESA, then they would need to rescind their prior approval before making any changes. If you are concerned it’s best to contact your landlord directly or to seek legal advice.
Question: My landlord’s pet policy requires tenants to pay a deposit and a pet fee. Will I now be required to meet these requirements?
Response: It depends, but if your landlord decides to reevaluate your ESA at renewal, you could be asked to pay a deposit and a pet fee unless the law in your state offers you additional protections.
Question: Why did HUD do this?
Response: Emotional support animals have been controversial among housing providers and difficult for the agency to evaluate because there has been no clear definition of what an emotional support animal is and isn’t. The recent federal lawsuit in New York prompted the agency to look into the soundness of their prior guidance and found concerns in their legal reasoning.
Sleep Sound Property Management, Inc. is located in Portland, Oregon and manages homes, plexes, and apartments in the Portland metro and Vancouver, Washington area.
