In 2020, the U.S. Department of Housing and Urban Development (“HUD”) issued FHEO-2020-01 notice, which provided important guidance on handling requests for emotional support animals under the Fair Housing Act. As discussed in a prior article, that guidance significantly influenced how condominium and homeowners associations reviewed documentation, distinguished assistance animals from pets, and determined whether exceptions to pet restrictions or fees were required under the federal Fair Housing Act.
On May 22, 2026, HUD issued a memorandum confirming the permanent rescission of FHEO-2020-01 and announcing a materially different federal enforcement policy. Going forward, HUD will find reasonable cause and recommend charges in animal-accommodation cases only when the animal has been individually trained to perform work or tasks directly related to a person’s disability as a service animal.
However, as discussed in this article, condominium and HOA boards should not interpret HUD’s position as permission to deny an emotional support animal request automatically. The Fair Housing Act has not been amended, private lawsuits remain available, existing federal case law has not disappeared, and state or local civil rights laws may provide protections beyond HUD’s new enforcement position. As such, community associations should not outright deny requests for emotional support animals simply because HUD has indicated that it will no longer find reasonable cause or recommend charges in complaints involving untrained emotional support animals.
What Is HUD’s New Enforcement Standard for Emotional Support Animals?
HUD will now use the definition of a service animal under the Americans with Disabilities Act (“ADA”) to determine whether a reasonable accommodation should be provided for an animal. However, the ADA does not apply to most community associations because it generally applies only to places of public accommodation that are open or made available to the general public. For example, portions of an association’s clubhouse or recreational facilities may be subject to the ADA if they are regularly rented or otherwise made available to members of the public rather than being reserved exclusively for residents. Accordingly, it is important to understand that the Fair Housing Act and case law interpreting it will ultimately determine whether a request for a reasonable accommodation to have an assistance or emotional support animal should be granted.
Under the ADA, an animal must be individually trained to perform work or tasks directly related to an individual’s disability. Examples may include guiding a person with impaired vision, alerting a person who is deaf, assisting during a seizure, retrieving items, providing physical stability, or performing a trained task that assists a person with a psychiatric or neurological disability. An animal’s mere provision of comfort, companionship, emotional support, or general well-being does not constitute trained work or a task under the ADA standard.
The new HUD guidance states that requests to waive pet policies for trained assistance animals are presumptively reasonable, while requests involving untrained emotional support animals are not. HUD’s position does not necessarily mean that only dogs may qualify as service animals under the Fair Housing Act. Although the ADA generally limits service animals to dogs, HUD’s memorandum acknowledges that another species could potentially qualify as a housing accommodation when the particular animal is trained to perform a disability-related service.
Importantly, this is only a HUD enforcement policy. It tells HUD personnel which cases HUD will prioritize and when HUD will likely find reasonable cause to pursue violations of the Fair Housing Act. The new HUD guidance on emotional support animals does not amend the Fair Housing Act or definitively determine how every federal or state court must interpret the statute.
HUD Guidance on Emotional Support Animals is Not Binding on Courts
The new HUD guidance relies heavily on Henderson v. Five Props. LLC, No. CV 24-750, 2025 WL 1951763 (E.D. La. July 16, 2025), a case that ruled that the 2020 HUD Guidance on emotional support animals was not persuasive. In Henderson, a prospective tenant requested that a $400 animal fee be waived because her dog was an emotional support animal. She submitted a letter from a healthcare provider stating that she had a qualifying mental or emotional condition and needed an emotional support animal. The housing provider permitted the dog but declined to waive the fee, concluding that the documentation did not establish that eliminating the fee was necessary for the tenant to use and enjoy the apartment.
The court dismissed the case and rejected the proposition that FHEO-2020-01 automatically required the waiver of every generally applicable pet fee involving an emotional support animal. It found HUD’s notice unpersuasive and held that the tenant was still required to prove that the requested fee waiver was both reasonable and necessary under the Fair Housing Act. The tenant could afford the fee through a payment arrangement offered by the housing provider. The court therefore concluded that she had not shown that a complete waiver of the fee was reasonable or necessary.
Henderson should not be treated as a nationwide rule that binds every court. It is one federal district court decision applying the law within the Fifth Circuit. Other federal courts have relied on earlier HUD interpretations and have recognized untrained emotional support animals as potential reasonable accommodations. Courts in other jurisdictions may apply different standards to necessity, reasonableness, fees, documentation, or the weight given to HUD’s prior guidance. However, it does demonstrate that a Court is not required to follow HUD guidance.
The Fair Housing Act and Private Lawsuits Still Apply
HUD acknowledges that its new enforcement policy does not prevent an individual from filing a private lawsuit. The Fair Housing Act permits an aggrieved person to bring an action in federal or state court, generally within two years after the occurrence or termination of the alleged discriminatory practice. The central question generally remains whether a requested change to a rule, policy, practice, or service of a community association is reasonable and necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. That analysis is ordinarily individualized and fact specific.
Accordingly, boards should not adopt a policy categorically prohibiting emotional support animals because they are not trained. A blanket denial could expose a condominium or homeowners association to litigation, particularly in a jurisdiction where existing appellate precedent recognizes accommodations involving untrained animals.
State Laws May Provide Protections for Emotional Support Animals
It is also important to note that the new HUD Guidance does not repeal or modify state civil rights laws. Depending on the facts, a request may implicate Michigan’s Persons with Disabilities Civil Rights Act or Michigan’s Elliott-Larsen Civil Rights Act. For example, in Riverbrook v. Fabode, 510 Mich. 1061; 981 N.W.2d 468 (2022), the Michigan Supreme Court held that expert testimony is not necessarily required to establish the need for a reasonable accommodation under the Fair Housing Act or Michigan’s Persons with Disabilities Civil Rights Act. Nevertheless, an individual requesting an accommodation must still provide sufficiently reliable evidence of a disability-related need when that need is not apparent. Accordingly, community associations should evaluate the reliability and sufficiency of the information provided, as courts will still evaluate whether a request is reasonable and necessary, even if HUD does not perform an investigation.
How Should Condo and HOA Boards Evaluate Requests for Emotional Support Animals?
The safest approach is not automatic approval or automatic denial. Community associations should continue to use an individualized, documented process, as was recommended. As such, a community association should still stick to the same process in evaluating requests for emotional support animals, as discussed in: What Every Condo or HOA Needs To Know About Emotional Support Animals – The Michigan Community Association Law Blog.
When a request for an animal is received, the board should determine precisely what accommodation is being requested. Is the owner asking to keep an otherwise prohibited animal, exceed a numerical limit, avoid a weight or breed restriction, use a common area, or waive a fee? Each request may require a different analysis of necessity and reasonableness.
A community association should then determine whether the disability and disability-related need are observable. When they are not, the community association may request sufficient reliable information to evaluate whether the resident has a qualifying disability and whether the requested accommodation is connected to that disability. Boards should avoid demanding medical records, a detailed diagnosis, or information unrelated to the accommodation request. The board should also determine whether controlling federal, state, or local law protects an untrained emotional support animal, a determination that requires consulting with a community association attorney who can also provide liability protection for board members under the business judgment rule.
Key Takeaways for ESA Requests to Community Associations
HUD’s rescission of FHEO-2020-01 notice represents a major change in federal enforcement policy, but it does not provide condominium and HOA boards with a simple rule allowing all untrained emotional support animal requests to be denied. The legal landscape will continue to develop through future HUD rulemaking, federal and state court decisions, and state civil rights laws. Until clearer regulations or controlling appellate decisions emerge, community associations should consider the following key takeaways:
- HUD changed its Fair Housing enforcement policy, not the Fair Housing Act. HUD’s rescission of FHEO-2020-01 means that HUD generally will no longer investigate or pursue reasonable-accommodation complaints involving untrained emotional support animals. However, Congress did not amend the Fair Housing Act, and the statutory requirement to provide reasonable accommodations to individuals with disabilities remains unchanged.
- Courts are not required to follow HUD’s new guidance. The new HUD guidance may be considered persuasive, but it is not binding on federal or state courts. As demonstrated by Henderson’s treatment of HUD’s prior guidance, courts are not required to adopt HUD’s interpretation of the Fair Housing Act.
- Community associations should continue to obtain legal advice before approving or denying a request. Potential conflicts may exist between HUD’s enforcement position, federal and state court decisions, and state or local civil rights laws. Condo and HOA boards should not automatically deny emotional support animal requests based solely on HUD’s new guidance. Instead, they should consult with an experienced community association attorney and conduct an individualized analysis of each request before taking action.
Frequently Asked Questions on Emotional Support Animals
Can a condominium or HOA now ban all emotional support animals?
No. HUD changed its federal enforcement policy, but it did not amend the Fair Housing Act or eliminate private lawsuits and state-law claims. Blanket denials remain risky, and a community association attorney should be consulted on an emotional support animal request.
Can a community association still question an ESA letter obtained online?
Yes. A community association may generally request reliable disability related information when the disability or need is not apparent. The quality, credibility, and relevance of the documentation may be evaluated, but boards should not demand unnecessary medical details.
Does HUD’s new policy apply to service animals?
Trained animals that perform disability-related work or tasks receive the strongest protection under HUD’s guidance on emotional support animals. Requests involving service animals are considered presumptively reasonable, subject to recognized defenses such as direct threat or undue burden, whereas requests related to emotional support animals are not.
Should a community association revise its Fair Housing or reasonable accommodation policy?
Yes. Policies that quote or rely exclusively on HUD’s rescinded FHEO-2020-01 notice should be reviewed. Any revision should preserve an individualized review process and account for applicable federal, state, and local law.
