That emotional support animal letter from an online provider?
It may no longer carry the weight it once did. On May 22, 2026, the U.S. Department of Housing and Urban Development’s (“HUD”) Office of Fair Housing and Equal Opportunity (“FHEO”) issued a major enforcement memorandum that fundamentally changes how HUD will handle animal-related reasonable accommodation complaints under the Fair Housing Act. For community associations, including homeowners association and condominiums (collectively, “HOAs”), that have spent years navigating the murky waters of emotional support animal (“ESA”) requests—often at great expense and with little clarity—this is a significant development worth understanding.
The Old Regime: Untrained Animals Welcome
For over a decade, HUD’s guidance treated untrained emotional support animals essentially the same as trained service animals. This evolution began in 2008 when HUD narrowed the definition of “pets” in public housing to exclude “animals that are used to assist, support, or provide service to persons with disabilities.” Although that rule applied only to HUD-assisted public housing, some courts extended its reasoning to private housing providers, including HOAs.
In 2013, HUD issued subregulatory guidance declaring that “any assistance animal”, trained or untrained, must generally be admitted into dwellings and common areas, without restrictions or pet fees, as a reasonable accommodation. The 2020 FHEO notice reinforced these general rules and purported to define the “type and amount of documentation” a housing provider could request.
The result? An entire industry emerged to convert pets into emotional support animals, often with little more than a form letter obtained online. Housing providers that denied requests or asked reasonable follow-up questions risked a fair housing complaint and a prolonged investigation, even when they complied with HUD’s own guidance.
Why HUD Changed Course
In his memorandum, Assistant Secretary Craig W. Trainor cited several reasons for the shift. First, President Trump’s February 2025 executive order instructed federal agencies to review enforcement activities and “preserve their limited enforcement resources by generally de-prioritizing actions to enforce regulations that are based on anything other than the best reading of a statute.”
Second, the prior guidance failed to provide meaningful clarity. Six years after the 2020 FHEO notice, it remained “an immense challenge to determine whether an animal-related reasonable accommodation should be granted or denied.” The supposed distinction between pets and ESAs proved unworkable in practice.
Third, the guidance imposed categorical obligations on housing providers without going through the notice and comment requirements of the Administrative Procedure Act, a process designed to give affected parties, including HOAs, an opportunity to participate in agency decision-making.
Finally, a federal court in Henderson v. Five Properties LLC rejected the 2020 FHEO notice as “unpersuasive” when a plaintiff relied on it to support her ESA reasonable accommodation claim. The court held that, following the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, agency interpretations that were not derived from formal adjudication or notice-and-comment rulemaking are entitled to respect only to the extent they have the “power to persuade” and found that the 2020 FHEO notice lacked that power.
The New Standard: Training Required
The memorandum permanently rescinds FHEO’s 2020 notice regarding assistance animals (as well as its predecessor 2013 notice). Going forward, FHEO will use the training component of the Americans with Disabilities Act’s (“ADA”) definition for service animals to assess animal-related reasonable accommodation complaints, including those related to ESAs, under the Fair Housing Act.
Under the ADA, a service animal is one that is “individually trained to do work or perform tasks for the benefit of an individual with a disability.” The tasks performed must be “directly related” to the disability. Common examples include assisting individuals who are blind with navigation, alerting individuals who are deaf to sounds, assisting during seizures, retrieving items, providing physical support and balance, and helping persons with psychiatric and neurological disabilities. Critically, “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”
There is one notable difference from the ADA: under the Fair Housing Act, an animal-related reasonable accommodation could involve a species other than a dog, provided the animal is trained to perform a disability-related service.
In practical terms, FHEO will now find reasonable cause for failure to provide a reasonable accommodation involving the waiver of a pet policy only where the animal has been individually trained to perform work or tasks directly related to the complainant’s disability. While requests to waive pet policies for trained assistance animals are presumptively reasonable, requests to waive pet policies for untrained ESAs are not. FHEO “no longer expects housing providers to categorically extend reasonable accommodations for trained assistance animals to untrained ESAs.”
What This Means for HOAs
For boards of directors and HOA managers who have struggled with ESA requests—sometimes involving multiple animals of various species supported by nothing more than online form letters—this memorandum provides meaningful relief from federal enforcement pressure. Over twenty percent (20%) of FHEO’s fair housing complaints previously involved untrained ESAs. That enforcement posture is now shifting to prioritize the most meritorious cases involving trained assistance animals.
However, HOAs should proceed with informed caution. The memorandum addresses how HUD’s FHEO will handle complaints, it does not change the Fair Housing Act itself. The Act still provides that a complainant may file a private civil action in federal or state court within two (2) years of the alleged discriminatory practice, and nothing in this enforcement guidance affects that right. State fair housing laws may also impose independent obligations.
Future Rulemaking on the Horizon
The memorandum signals that HUD intends to engage in notice and comment rulemaking regarding animal-related reasonable accommodations, with the aim of harmonizing its regulations with the ADA “to the maximum extent possible.” HUD’s regulations for animal-related reasonable accommodations by private housing providers have not been updated in thirty-five (35) years. Public input from private as well as public housing providers will be sought to develop a sound approach to case-by-case determinations.
Practical Takeaways for Your Community
Given these developments, HOAs should consider the following steps:
First, review your current pet and assistance animal policies with legal counsel. The landscape has shifted, and policies drafted under the old HUD guidance may warrant updating to reflect the new enforcement posture while remaining compliant with applicable federal and state law.
Second, understand that this is a federal enforcement policy change, not a blanket license to deny all ESA requests. Courts may still reach different conclusions in private litigation, and state laws continue to apply independently.
Third, continue to engage in the interactive process when residents submit accommodation requests. Document everything. The fact-intensive, case-by-case nature of reasonable accommodation determinations has not changed.
Fourth, stay tuned for HUD’s forthcoming rulemaking. HOAs and their representatives will have an opportunity to provide public comment—an opportunity that did not exist when the prior guidance was imposed.
Conclusion
For years, HOAs found themselves caught between unclear federal guidance and the practical reality of ESA requests supported by dubious documentation. HUD’s May 2026 enforcement memorandum does not eliminate the need for careful, case-by-case evaluation of accommodation requests, but it does mark a decisive turn toward clarity and alignment with the ADA’s training-based standard. Boards and managers who stay informed, update their policies thoughtfully, and work with experienced legal counsel will be well-positioned to navigate this evolving area of the law.
Ward and Smith has a dedicated Community Associations Practice Group with attorneys experienced in representing associations in all aspects of governance, including assistance animal policies and Fair Housing Act compliance. We are happy to speak with you about how these changes may affect your community.
