The U.S. Department of Housing and Urban Development (HUD) withdrew its 2013 and 2020 guidance on assistance animals in fair housing on September 17, 2025, sowing confusion among housing providers over the provisions of the Fair Housing Act (FHA) concerning reasonable accommodations in its absence. The wait for new direction under HUD on this pressing issue is over, as HUD issued its new enforcement guidance on assessing the use of animals as reasonable accommodations on May 22, 2026.

The new guidance is that disability-related assistance animals exempt from housing providers’ pet policies, including pet fees, are now confined to trained service animals. The guidance also removes the presumption that untrained Emotional Support Animals (ESAs) must be accommodated by housing providers. Administratively, it puts all open HUD cases concerning ESAs on hold for individual review under the new standard by the Acting Deputy Assistant Secretary for Enforcement. As such, HUD has taken another significant step in its view of the FHA.

While the new guidance resolves certain threshold questions—most notably by confining disability-related animal accommodations to trained service animals and eliminating the longstanding presumption in favor of untrained ESAs—it leaves several critical issues open for housing providers, including the interplay with existing state and local ESA protections, the continued viability of breed and weight restriction challenges, and the status of pending and future private court actions involving ESAs. Understanding these open questions is essential for housing providers navigating this significant policy shift.

HUD’s New Guidance on Assistance Animals Under the FHA
HUD’s May 22, 2026 guidance begins by explaining why the 2020 guidance was rescinded, stating that it failed to provide housing providers with greater clarity on the distinction between pets and Emotional Support Animals and, instead, led to the emergence of an entire industry to convert pets into ESAs.¹ The May 22, 2026 guidance provides that, effective immediately, HUD will only find “reasonable cause” and recommended charges with respect to complaints on animal-related reasonable accommodations in cases involving animals trained to provide disability-related assistance (i.e., service animals as opposed to ESAs). The new guidance further states that HUD will only find violations of the FHA for failure to provide a reasonable accommodation involving the waiver of a pet policy when the animal has been individually trained to perform work or tasks directly related to the individual’s disability. It further states that requests to waive pet policies for untrained ESAs are no longer presumptively reasonable, as opposed to requests to waive such policies for animals trained to perform specific disability-related services. 

Open Issues for Housing Providers

1. Breed and Weight Restrictions
The new HUD guidance raises the question of potential challenges to breed and weight restrictions for ESAs. Although it does not directly address these ancillary issues, the rescinded HUD guidance made it clear that landlords could not apply breed and weight restrictions to disability-related assistance animals, including ESAs. Whether the new guidance effectively permits the reimposition of such restrictions on ESAs remains an open question that housing providers will need to monitor closely.

2. Private Rights of Action
It is important to note that, as explicitly stated in the new HUD guidance, individuals still have the right to seek redress for perceived violations of the FHA involving ESAs through private actions in court. Individuals may file complaints directly in court—bypassing HUD—within two years after the occurrence or termination of the alleged discriminatory housing practice. This means that even though HUD itself will no longer pursue ESA-related complaints, housing providers may still face litigation from individuals asserting ESA-based accommodation claims in federal and state courts.

A. Section 504 of the Rehabilitation Act
Housing providers should also note that HUD’s new guidance is not applicable to cases falling under Section 504 of the Rehabilitation Act (Section 504), which applies to properties participating in programs or activities receiving federal funding. Providers of federally-funded housing, therefore, remain subject to the prior, broader accommodation framework with respect to ESAs.

B. State and Local Law Conflicts
The new HUD guidance does not alter local and state laws and regulations where, in many jurisdictions, failing to waive a pet fee for an ESA could be considered a failure to accommodate. Given that many charges of discrimination are jointly filed with HUD and a local agency, the new HUD guidance can create a duality with respect to the treatment of ESAs. Housing providers operating in jurisdictions with independent ESA protections must continue to comply with those requirements regardless of HUD’s new position.

Practical Implications
The practical implications for housing providers of this reversal of decades of HUD policy concerning assistance animals as reasonable accommodations for individuals with disabilities cannot be overstated. Prior to the rescinding of the 2020 guidance, housing providers were generally understood to be required to allow ESAs without any pet fees or other penalties. This is no longer the case. 

The new HUD guidance builds on the momentum in the direction away from the ESA-friendly interpretation of the prior HUD guidance reflected in a 2025 case from the Eastern District of Louisiana, Henderson v. Five Properties, LLC.² In fact, HUD attached the Henderson decision to the memo issuing new guidance. In Henderson, the judge rejected the proposition that HUD guidance always required housing providers to waive pet fees for people with ESAs. Instead, the court in Henderson held that a tenant with an ESA seeking waiver of generally applicable animal fees was required to prove that waiver of the fee was both necessary for her to use and enjoy her home reasonably, and that whether such an accommodation is required is a fact-specific determination to be made on a case-by-case basis. 

It is worth noting that this new HUD guidance was created in the wake of the Loper Bright decision from the U.S. Supreme Court in 2024, which noted the Court’s power to reject interpretations of statutes adopted by federal administrative agencies.³ In recent cases, such as Watts v. Joggers Run Prop. Owners Ass’n, courts are still deferring to HUD’s interpretation and regulations related to the FHA.⁴

The changes unfolding as a result of this new guidance will have far-reaching implications for housing providers’ operations. However, it does not change the current case law interpreting the FHA with respect to housing providers’ accommodations for ESAs. We will continue to watch closely as these issues inevitably unfold.
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^{1 U.S. Department of Housing and Urban Development, 2026, May 22, Assessing Requests for the Use of Animal as a Reasonable Accommodation Under the Fair Housing Act [press release].
2 Henderson v. Five Properties, LLC, 2025 WL 1951763 (E.D. LA July 16, 2025).
3 Loper Bright Enters. v. Raimondo, 603 U.S. 369 (U.S. June 28, 2024).
4 Watts v. Joggers Run Prop. Owners Ass'n, 133 F.4th 1032, 1042 (11th Cir. April 7, 2025).}