By: John W. Egan and Minh N. Vu

Seyfarth Synopsis: HUD’s May 22, 2026, memorandum announced that it will, going forward, find reasonable cause under the Fair Housing Act for failure to provide a reasonable accommodation only with respect to service animals, not ESAs.  Housing providers should proceed very cautiously before denying ESA requests.    

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While this blog primarily focuses on the obligations of places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”), we occasionally cover issues that arise under both Title III and the Fair Housing Act (“FHA”) because some businesses establishments, including rental offices, extended stay hotels, and dormitory landlords may be covered under both laws.  One circumstance where this arises is with accommodations for service animals and emotional support animals (“ESAs”).

Many individuals with disabilities rely on animals to assist with limitations presented by their disabilities.  Dogs trained to perform specific work or tasks for a person with a disability are service animals which public accommodations must accommodate under both Title III and the FHA.  While technically not defined as service animals, miniature horses that are trained to perform work or tasks for a person with a disability must also be accommodated under Title III.  ESAs are animals that may ameliorate the symptoms of a person’s disability by their presence, but are not trained to perform any work or tasks for a person with a disability.

For years, the FHA and Title III – as interpreted by the agencies with enforcement and regulatory authority (U.S. Department of Housing and Urban Development (“HUD”) and U.S. Department of Justice (“DOJ”) respectively) — have treated ESAs differently.  Title III provides no protection for ESAs, while HUD’s interpretation of the FHA has required housing providers to accommodate ESAs – until now. 

Prior HUD guidance required housing providers, including landlords and condominium/homeowner associations, to allow individuals with disabilities to keep “assistance animals” — a phrase HUD defined to include both service animals and ESAs.  HUD’s 2013 and 2020 guidance documents (the “Guidance Documents”) required housing providers to make exceptions to no-pet policies to allow assistant animals to live with their owners and, in pet-friendly communities, to waive pet fees for ESAs.

However, a May 22, 2026, U.S. Department of Housing and Urban Development (“HUD”) enforcement memorandum (the “HUD Memo“) signals HUD’s intent to treat ESAs in housing more like they are treated in places of public accommodation.  

According to the recent HUD Memo, the Guidance Documents contributed to a tsunami of accommodation requests involving ESAs and a corresponding surge in fair housing complaints filed against housing providers that denied such requests.  HUD reported that more than 20 percent of all fair housing complaints it has received involve ESAs, a situation the agency says “cannot continue.”

As a temporary measure pending future rulemaking, HUD rescinded the Guidance Documents and announced that it will, going forward, find reasonable cause for failure to provide a reasonable accommodation only with respect to service animals, not ESAs.  The Memo explains that Title III’s service animal regulations are “instructive” and states that HUD intends to engage in notice-and-comment rulemaking to harmonize its regulations with Title III “to the maximum extent possible.”

At first glance, the HUD Memo appears to provide relief for housing providers that have struggled with questionable accommodation requests for ESAs – including those supported by health care provider letters purchased online.  However, housing providers should not assume that the Memo gives them a green light to deny ESA-related accommodation requests for several reasons.

First, the HUD Memo affects only how HUD, a federal agency, will investigate and enforce complaints brought under the federal FHA.  It does not alter state or local fair housing laws, nor does it dictate how state and local enforcement agencies will handle ESA-related accommodation requests.

Many jurisdictions, including California, Illinois, and New York City, have regulations, guidance, and/or enforcement frameworks that expressly recognize ESAs in housing. Housing providers operating in those jurisdictions may still be required to accommodate ESAs notwithstanding HUD’s new enforcement position.  Furthermore, HUD often refers complaints it receives to state agencies for investigation.  It is unclear whether those agencies will honor the HUD Memo’s approach.

Second, individuals who are denied accommodation requests involving ESAs may bypass HUD entirely and proceed directly to federal court under the FHA. Federal courts are not obligated to defer to the HUD Memo because it is an enforcement policy rather than a duly-promulgated regulation.  As a result, courts could reach their own conclusions about whether a housing provider must allow a person with a disability to have an ESA or waive pet related fees.

Third, the rescission of HUD’s prior guidance leaves housing providers without clear direction regarding the information they may request when evaluating accommodation requests involving service animals.

For example, although the HUD Memo states that Title III’s service animal regulations are “instructive,” it does not specify whether housing providers are limited to the two questions that places of public accommodation may ask to verify that an animal qualifies as a service animal.  Applying that limitation in the housing context could prove impractical.  Unlike a service animal’s brief visit to a restaurant, store, or hotel, an animal residing in a housing community raises a variety of ongoing issues, including vaccinations, resident safety, property damage, insurance considerations, allergies, noise, sanitation, and interactions with other residents.

In light of the above, housing providers should not automatically deny all requests involving ESAs. Instead, they should continue to promptly evaluate requests on case-by-case basis using a consistent and documented approach. 

Finally, when HUD initiates the promised rulemaking process, housing providers should actively participate by submitting comments. Their practical experience and operational concerns can play an important role in shaping future regulations governing assistance animals in housing.

Edited by: Kristina M. Launey