HUD Just Stopped Recognizing Emotional Support Animals! Landlords Should Not Celebrate Yet.
On Friday, May 22, 2026, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) issued an enforcement guidance memo announcing that HUD will no longer recognize emotional support animals (ESA’s) as “assistance animals” under the federal Fair Housing Act.
Instead, moving forward, HUD will follow the ADA’s standard, that the animal must be individually trained to perform a task related to the person’s disability. Comfort, companionship, and emotional support alone are not enough. HUD diverged from the ADA, which only allows dogs to be service animals (and, in very limited circumstances, miniature horses), when HUD wrote that it would allow any animal as long as it has been individually trained. HUD’s memo also rescinds HUD’s prior ESA guidance, FHEO-2013-01 and FHEO-2020-01.
I know what many of you are thinking—Finally, I can start denying all those ridiculous, reasonable accommodation requests for ESAs!!
Not so fast. Stop. Collect yourself. Let’s think this through. I’ve seen far too many Landlords and property management companies get into trouble by making a knee-jerk reaction to a news headline. You must read the fine print and think about this news carefully and thoroughly.
Here are the limitations of HUD’s decision and ensuing memo, which you need to keep in mind:
1. The law itself hasn’t changed. The Fair Housing Act (FHA) is a statute passed by Congress. A HUD memo is neither a statute nor a regulation. It is merely HUD’s guidance for its staff. Congress hasn’t amended the FHA. HUD has only said it will stop pursuing these complaints, but the underlying law and HUD’s own (1989) regulations remain on the books. HUD may pursue formal rulemaking later, but that takes time, requires a public comment period, and is subject to challenge.
2. HUD’s decision only applies to FHA complaints. The memo is expressly limited to FHA reasonable accommodation complaints regarding ESA’s. It does not affect complaints filed under Section 504 of the Rehabilitation Act, which applies to all federally assisted housing, or the ADA. So, if you own or operate subsidized housing, HUD’s memo does not even apply to your housing, and an applicant and/or tenant can file a Section 504 claim for denying their ESA outright, which will result in a finding or probable cause that you discriminated.
3. The Courts are not required to follow HUD’s guidance. HUD’s guidance memo only tells HUD’s staff what to do — it doesn’t affect the decisions of judges or juries. If a tenant sues you in federal or state court for discrimination, or files a discrimination counterclaim in response to you filing an eviction action against them, neither the Court nor a jury is bound by HUD’s memo and can still rule that an untrained ESA is protected under the FHA. Following HUD’s memo is NOT a defense to a private discrimination lawsuit brought by your tenant.
4. HUD’s memo does not affect Wisconsin law. HUD’s decision is a federal enforcement decision, and Wisconsin has its own statute, Wis. Stat. § 106.50(2r)(br), that expressly recognizes and protects ESAs in housing. State law protects exactly what HUD has now decided to no longer recognize federally.
Applicants and/or Tenants can file their discrimination claim with the State’s Department of Workforce Development, Equal Rights Division, rather than file the complaint through the federal system with HUD. The DWD ERD doesn’t give two hoots about what HUD thinks; it only cares about Wisconsin law.
Regardless of HUD’s about-face on the ESA issue, (a) the FHA has not changed, (b) a applicant/tenant can still sue you for discrimination in federal or state court, or they can (c) file a complaint for discrimination with the state, or (d) file a discrimination complaint with HUD under Section 504 of the Rehabilitation Act instead of the FHA, all of which could result in a finding of discrimination if you were to deny an ESA based on HUD’s new memo.
I don’t know about you, but this all sounds no different from what we were dealing with prior to HUD’s May 22nd memo. That is true – nothing has changed except HUD’s advice to its staff.
So, what should you do now?
Keep doing exactly what you’ve been doing and ignore HUD’s new view toward ESAs.
You must continue to take ESA requests seriously, ask for proper documentation from a reliable person with first-hand knowledge when the disability or need isn’t open and obvious, and grant reasonable accommodation requests for properly documented ESA animals.
What you should NOT do is overhaul your policies, forms, and/or training just because HUD issued one internal memo that doesn’t change the FHA, doesn’t affect Section 504 claims, doesn’t bind the courts or a jury, and doesn’t change Wisconsin law.
Is ESA abuse a real problem? Of course, it is – and I hear about it from clients every week. Did I ever tell you about a tenant’s RA request for a new ESA for their current ESA? Yes, you read that correctly, an ESA for their ESA. I can’t make this stuff up. Or what about the request for a pot-bellied pig, the 20-foot-long Albino Burmese Python, or the need for four ESAs for one person?
But the proper way to handle a reasonable accommodation request for an ESA has not changed. You must create a careful, consistent, prompt, and well-documented accommodation process, not a blanket “no” that hands a tenant and their attorney an easy finding of discrimination.
If HUD opts to pursue a formal rulemaking change regarding ESA’s in the future, perhaps the Courts will rely on it over time, the landscape may shift from the current insanity, and if that occurs, our Landlord-Tenant law team at Pettit Law Group will alert you to this with a new blog post or when consulting with you on a legal matter. Until then, however, don’t let a headline cause you to make an expensive mistake.
Take care, and Happy Landlording.
T
