HUD Issues New Internal Memorandum Potentially Eliminating Federal Enforcement of ESA Claims Under the Federal Fair Housing Act
Written by Andrew B. Black, Esq. BCS, Kaye Bender Rembaum, P.L.
On May 22, 2026, the U.S. Department of Housing and Urban Development (“HUD”), through its Office of Fair Housing and Equal Opportunity (“FHEO”), issued an internal Memo entitled: “Enforcement Guidance – Assessing Requests for the Use of an Animal as a Reasonable Accommodation Under the Fair Housing Act”. This Memo can be read by clicking HERE.
This Memo indicates a significant shift in the manner HUD will consider complaints regarding the ability of individuals to keep an ESA in community associations that restrict or prohibit pets. The Memo indicates the intent to apply the same standards for Housing issues as are currently reflected in the Americans with Disabilities Act (“ADA”), which do not include a category for ESAs. The Memo clarifies that HUD will use the training component of the ADA definition for service animals to evaluate animal-related reasonable accommodation complaints under the Federal Fair Housing Act.
Importantly, for housing discrimination complaints concerning animal-related reasonable accommodations, HUD will now only recommend charges for those cases involving animals specifically trained to provide physical disability-related assistance rather than emotional related issues. This is an important change for community associations, as HUD is shifting its focus to only enforcing discrimination claims for trained service animals, not ESAs.
As a reminder, a “service animal” is legally distinct from an ESA. As confirmed in the Memo, under the ADA, a service animal “…is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability…”, and the tasks performed by the animal must be directly related to the disability. As outlined in the Memo: “[c]ommon examples of disability-related tasks include assisting individuals who are blind or have low vision with navigation, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, assisting an individual during a seizure, retrieving items, providing physical support and assistance with balance and stability, and helping persons with psychiatric and neurological disabilities”.
Unlike a service animal, an ESA does not require any specialized training, and Courts (and HUD) often recognized an ESA as a potential reasonable accommodation, requiring community associations to approve an ESA if a qualified 3rd party professional confirmed that the person has a disability that impacts a major life activity, and that the animal provided emotional support to alleviate a symptom of the disability. As referenced in the Memo, this broad ability to maintain an ESA has led to claims of abuse and “…an entire industry has emerged to convert pets into emotional support animals…”.
Based on these ESA issues, HUD is altering its internal enforcement priorities, effective on the date of publication. However, a HUD Memo is not a new federal law, but rather an indication as to how HUD interprets existing federal law. It is currently unclear how Courts will enforce Fair Housing claims if a civil lawsuit is brought. Notably, individuals claiming relief for ESAs can still file a private civil cause of action regarding housing discrimination/ESA issues. Further, it is currently unclear how local County Fair Housing agencies will modify their own internal procedures when a discrimination complaint is made (although the likely result will be compliance with the HUD directives).
Therefore, as this is an evolving situation, it remains recommended that Boards consult with its legal counsel anytime a reasonable accommodation request is made, including ESA requests. It is still important to evaluate accommodation requests on a case-by-case basis, engage in an objective and good faith interactive process with the requesting party, and to carefully review any submitted documentation to support a disability-related request of a resident.
We continue to closely monitor future developments on this issue. If you have immediate concerns, contact your association counsel.
