Overview
On May 22, 2026, the U.S. Department of Housing and Urban Development (HUD) rescinded prior guidance applying the Fair Housing Act (FHA) to emotional support animals (ESAs). At the same time, HUD announced a new standard: it will now apply the more restrictive American with Disabilities Act (ADA) rules to its assessment of animal-related complaints. Colleges and universities will no longer be presumptively expected by HUD to allow students to keep untrained ESAs in campus housing.
What You Need to Know
- HUD’s Office of Fair Housing and Equal Opportunity (FHEO) will only find reasonable cause and recommended charges for complaints involving animals trained to provide disability-related assistance directly related to the complainant’s disability.
- Untrained ESAs will no longer be considered a presumptive reasonable accommodation under the FHA.
- Key guardrails remain unchanged:
- The FHA has not been amended, and students’ private right of action under the FHA has not been impacted;
- The ADA and Rehabilitation Act continue to apply; and
- State and local fair housing laws are unaffected.
- As such, the primary benefit of the change may be providing greater flexibility to institutions in considering unsupported requests and requests for untrained animals.
What HUD Said Before
Relevant disability laws (FHA, ADA, and the Rehabilitation Act) require reasonable accommodations for people with disabilities to ensure access to programs and facilities. Requests to allow an animal to live in premises where animals are not otherwise permitted have long been common – and challenging – for colleges and universities, as institutions have struggled to discern between pets that can be permissibly excluded from housing, and animals that must be allowed as reasonable accommodations. Enforcement agencies adopting different standards compounded the confusion.
HUD previously published guidance (in 2013 and 2020) interpreting the FHA to protect ESAs – animals that provide comfort, companionship, and therapeutic benefit to a person with a disability through their presence – as “assistance animals,” even though such animals are not specially trained. Landlords were generally required to allow ESAs, without pet fees or other penalties, and minimal documentation. This was sometimes to the chagrin of colleges and universities that found themselves facing challenging issues such as requests for multiple ESAs in one room, property damage and injury caused by poorly behaved ESAs, and conflict with the needs of other students with disabilities, including allergies.
Under the ADA, however, ESAs are not categorically protected. Rather, only service animals, defined as animals that have been individually trained to do work or perform tasks for a person with a disability, have to be presumptively permitted.
What HUD Says Now
In its recent memo, HUD switched its approach. The memo first confirmed the rescission of the 2013 and 2020 guidance, stating that the earlier guidance had failed to provide sufficient clarity on the distinction between pets and ESAs. The memo also expressed concern that the prior guidance had been issued without the notice and comment required by the Administrative Procedure Act, with the Assistant Secretary asserting that the sub-regulatory guidance had been given unwarranted judicial deference.
Having dispensed with the old guidance, the memo went on to announce that FHEO “no longer expects housing providers to categorically extend accommodations for trained assistance animals to untrained ESAs.” Requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, according to FHEO.
FHEO also took this opportunity to publicize its enforcement priorities and forecast its non-priorities. Unsurprisingly in light of the guidance, FHEO will focus on cases involving trained assistance animals. FHEO also provided reason to assume that it is especially unlikely to find discrimination or investigate complaints when institutions impose pet fees for ESAs.
Attached to the guidance were three exhibits: a federal district court decision and two HUD determination letters dismissing complaints. In each attachment, the decisionmaker considered a complaint alleging discrimination based on the application of pet fees to an ESA and concluded that an FHA violation had not been established. These materials were included by HUD to “reflect the Department’s current approach to animal-related reasonable accommodation requests.”
What’s Next?
Looking forward, HUD expects to engage in notice-and-comment rulemaking regarding animal-related reasonable accommodations. It is likely that future rulemaking will aim to formalize the incorporation of the ADA service animal definition into the FHA. In the more immediate term, open cases concerning ESAs must be sent by Regional Directors to the Acting Deputy Assistant Secretary for Enforcement and Programs “for a case-by-case determination on the merits.” Such cases will likely be closed without finding a violation.
The Bottom Line
HUD’s new approach is effective immediately. Institutions may consider revisions to align their animals-on-campus policies with HUD’s new approach and establish that only individually trained animals will be presumptively permitted as reasonable accommodations.
Institutions may also wish to adjust the documentation they request in assessing animal-related reasonable accommodation requests, such as to require documentation from a licensed healthcare provider who has an actual treatment relationship with the student (side-stepping questionable online “ESA letter” generators).
That said, HUD’s memo is not an open invitation to categorically revoke ESA approvals or deny future ESA requests. The FHA still requires an individualized interactive process; each request must be considered on its own merit and factual circumstances. The same remains true under the ADA and the Rehabilitation Act, which apply to reasonable accommodation requests outside of the housing context. In addition, many states have their own fair housing statutes that independently protect ESAs, which remain unchanged. Ultimately, the most significant value will be empowerment to draw lines to refuse unsupported requests. For institutions which have long felt constrained in rejecting even the most loosely supported requests, HUD has granted some breathing room.
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The Higher Education Practice at Saul Ewing will keep a close eye on this issue and support colleges and universities as they continue to promulgate and implement policies for assessing reasonable accommodation requests. Please do not hesitate to contact the authors of this alert, or your regular Saul Ewing point(s) of contact, with any questions about the substance of this alert.
